Republic of the Philippines Act No. 910 as amended by Republic Act No. 1797.

They filed the instant

SUPREME COURT petition on their own behalf and in representation of all other retired
Manila Justices of the Supreme Court and the Court of Appeals similarly
situated.
EN BANC
Named respondents are Hon. Franklin Drilon the Executive Secretary,
Hon. Guillermo Carague as Secretary of the Department of Budget and
Management, and Hon. Rosalinda Cajucom, the Treasurer of the
G.R. No. 103524 April 15, 1992 Philippines. The respondents are sued in their official capacities, being
officials of the Executive Department involved in the implementation of
the release of funds appropriated in the Annual Appropriations Law.
CESAR BENGZON, QUERUBE MAKALINTAL, LINO M. PATAJO,
JOSE LEUTERIO, ET AL., petitioners,
vs. We treat the Comments of the Office of the Solicitor General (OSG) as
HON. FRANKLIN N. DRILON, in his capacity as Executive an Answer and decide the petition on its merits.
Secretary, HON. GUILLERMO CARAGUE, in his capacity as
Secretary of Department of Budget and Management, and HON. The factual backdrop of this case is as follows:
ROSALINA CAJUCOM, in her capacity as National
Treasurer, respondents. On June 20, 1953, Republic Act No, 910 was enacted to provide the
retirement pensions of Justices of the Supreme Court and of the Court
A.M. No. 91-8-225-CA April 15, 1992 of Appeals who have rendered at least twenty (20) years service either
in the Judiciary or in any other branch of the Government or in both,
REQUEST OF RETIRED JUSTICES MANUEL P. BARCELONA, having attained the age of seventy (70) years or who resign by reason
JUAN P. ENRIQUEZ, JUAN O. REYES, JR. and GUARDSON R. of incapacity to discharge the duties of the office. The retired Justice
LOOD FOR READJUSTMENT OF THEIR MONTHLY PENSION. shall receive during the residue of his natural life the salary which he
was receiving at the time of his retirement or resignation.

Republic Act No. 910 was amended by Republic Act No. 1797 (approved
GUTIERREZ, JR., J.: on June 21, 1957) which provided that:

The issue in this petition is the constitutionality of the veto by the
President of certain provisions in the General Appropriations Act for the
Fiscal Year 1992 relating to the payment of the adjusted pensions of
retired Justices of the Supreme Court and the Court of Appeals.
The petitioners are retired Justices of the Supreme Court and Court of
Appeals who are currently receiving monthly pensions under Republic
Sec. 3-A. In case the salary of Justices of the Supreme
Court or of the Court of Appeals is increased or
decreased, such increased or decreased salary shall, for
purposes of this Act, be deemed to be the salary or the
retirement pension which a Justice who as of June
twelve, nineteen hundred fifty-four had ceased to be
such to accept another position in the Government or

Page 1 of 14
 who retired was receiving at the time of his cessation in
office. Provided, that any benefits that have already
accrued prior to such increase or decrease shall not be
affected thereby.
Identical retirement benefits were also given to the members of the
Constitutional Commissions under Republic Act No. 1568, as amended
by Republic Act No. 3595. On November 12, 1974, on the occasion of
the Armed Forces Loyalty Day, President Marcos signed Presidential
Decree 578 which extended similar retirement benefits to the members
of the Armed Forces giving them also the automatic readjustment
features of Republic Act No. 1797 and Republic Act No. 3595.
Two months later, however, President Marcos issued Presidential
Decree 644 on January 25, 1975 repealing Section 3-A of Republic Act
No. 1797 and Republic Act No. 3595 (amending Republic Act No. 1568
and Presidential Decree No. 578) which authorized the adjustment of
the pension of the retired Justices of the Supreme Court, Court of
Appeals, Chairman and members of the Constitutional Commissions
and the officers and enlisted members of the Armed Forces to the
prevailing rates of salaries.
Significantly, under Presidential Decree 1638 the automatic
readjustment of the retirement pension of officers and enlisted men was
subsequently restored by President Marcos. A later decree Presidential
Decree 1909 was also issued providing for the automatic readjustment
of the pensions of members of the Armed Forces who have retired prior
to September 10, 1979.
While the adjustment of the retirement pensions for members of the
Armed Forces who number in the tens of thousands was restored, that
of the retired Justices of the Supreme Court and Court of Appeals who
are only a handful and fairly advanced in years, was not.
Realizing the unfairness of the discrimination against the members of
the Judiciary and the Constitutional Commissions, Congress approved
in 1990 a bill for the reenactment of the repealed provisions of Republic
Act No. 1797 and Republic Act No. 3595. Congress was under the
impression that Presidential Decree 644 became law after it was
published in the Official Gazette on April 7, 1977. In the explanatory note
of House Bill No. 16297 and Senate Bill No. 740, the legislature saw the
need to reenact Republic Act Nos. 1797 and 3595 to restore said
retirement pensions and privileges of the retired Justices and members
of the Constitutional Commissions, in order to assure those serving in
the Supreme Court, Court of Appeals and Constitutional Commissions
adequate old age pensions even during the time when the purchasing
power of the peso has been diminished substantially by worldwide
recession or inflation. This is underscored by the fact that the petitioner
retired Chief Justice, a retired Associate Justice of the Supreme Court
and the retired Presiding Justice are presently receiving monthly
pensions of P3,333.33, P2,666.66 and P2,333.33 respectively.
President Aquino, however vetoed House Bill No. 16297 on July 11,
1990 on the ground that according to her "it would erode the very
foundation of the Government's collective effort to adhere faithfully to
and enforce strictly the policy on standardization of compensation as
articulated in Republic Act No. 6758 known as Compensation and
Position Classification Act of 1989." She further said that "the
Government should not grant distinct privileges to select group of
officials whose retirement benefits under existing laws already enjoy
preferential treatment over those of the vast majority of our civil service
servants."
Prior to the instant petition, however, Retired Court of Appeals Justices
Manuel P. Barcelona, Juan P. Enriquez, Juan O. Reyes, Jr. and
Guardson R. Lood filed a letter/petition dated April 22, 1991 which we
treated as Administrative Matter No. 91-8-225-CA. The petitioners asked
this Court far a readjustment of their monthly pensions in accordance
with Republic Act No. 1797. They reasoned out that Presidential Decree
644 repealing Republic Act No. 1797 did not become law as there was
no valid publication pursuant to Tañada v. Tuvera, (136 SCRA 27
[1985]) and 146 SCRA 446 [1986]). Presidential Decree 644
promulgated on January 24, 1975 appeared for the first time only in the
Page 2 of 14
supplemental issue of the Official Gazette, (Vol. 74, No. 14) purportedly
dated April 4, 1977 but published only on September 5, 1983. Since
Presidential Decree 644 has no binding force and effect of law, it
therefore did not repeal Republic Act No. 1797.
In a Resolution dated November 28, 1991 the Court acted favorably on
the request. The dispositive portion reads as follows:
WHEREFORE, the requests of retired Justices Manuel
P. Barcelona, Juan P. Enriquez, Juan O. Reyes and
Guardson Lood are GRANTED. It is hereby
AUTHORIZED that their monthly pensions be adjusted
and paid on the basis of RA 1797 effective January 1,
1991 without prejudice to the payment on their pension
differentials corresponding to the previous years upon
the availability of funds for the purpose.
Pursuant to the above resolution, Congress included in the General
Appropriations Bill for Fiscal Year 1992 certain appropriations for the
Judiciary intended for the payment of the adjusted pension rates due the
retired Justices of the Supreme Court and Court of Appeals.
The pertinent provisions in House Bill No. 34925 are as follows:
XXVIII. THE JUDICIARY
A. Supreme Court of the Philippines and the Lower
Courts.
For general administration, administration of personnel
benefits, supervision of courts, adjudication of
constitutional questions appealed and other cases,
operation and maintenance of the Judicial and Bar
Council in the Supreme Court, and the adjudication of
regional court cases, metropolitan court cases,
municipal trial court cases in Cities, municipal circuit
court cases, municipal, court cases, Shari'a district court
cases and Shari'a circuit court cases as indicated
hereunder P2,095,651,000
xxx xxx xxx
Special Provisions.
1. Augmentation of any Item in the Court's
Appropriations. Any savings in the appropriation for the
Supreme Court and the Lower Courts may be utilized by
the Chief Justice of the Supreme Court to augment any
item of the Court's appropriations for: (a) printing of
decisions and publications of Philippine Reports; b)
commutable terminal leaves of Justices and other
personnel of the Supreme Court and any payment of
adjusted pension rates to retired Justices entitled thereto
pursuant to Administrative Matter No. 91-8-225-CA; (c)
repair, maintenance, improvement, and other operating
expenses of the courts' books and periodicals; (d)
purchase, maintenance and improvement of printing
equipment; e) necessary expenses for the employment
of temporary employees, contractual and casual
employees, for judicial administration; f) maintenance
and improvement of the Court's Electronic Data
Processing; (g) extraordinary expenses of the Chief
Justice, attendance in international conferences and
conduct of training programs; (h) commutable
transportation and representation allowances and fringe
benefits for Justices, Clerks of Court, Court
Administrator, Chief of Offices and other Court
personnel in accordance with the rates prescribed by
law; and (i) compensation of attorneys-de-oficio;
PROVIDED, that as mandated by LOI No. 489 any
increases in salary and allowances shall be subject to
the usual procedures and policies as provided for under
Page 3 of 14
 P.D. No. 985 and other pertinent laws. (page 1071,
General Appropriations Act, FY 1992; Emphasis
supplied)
xxx xxx xxx
4. Payment of Adjusted Pension Rates to Retired
Justices. The amount herein appropriated for payment
of pensions to retired judges and justices shall include
the payment of pensions at the adjusted rates to retired
justices of the Supreme Court entitled thereto pursuant
to the ruling of the Court in Administrative Matter No. 91-
8-225-C.A. (page 1071, General Appropriations Act, FY
1992).
xxx xxx xxx
Activities and Purposes
1. General Administration and Support Services.
a. General administrative Services P
43,515,000
b. Payment of retirement gratuity
of national goverment officials
and employees P 206,717,000
c. Payment of terminal leave benefits to
officials and employees antitled thereto
P 55,316,000
d. Payment of pension totired jude
and justice entitled thereto P 22,500,000
(page 1071, General Appropriations Act, FY 1992)
For general administration,
administration
of personnel benefit, benefits and the
adjudication of appealed and other
cases
as indicated hereunder P114,615,000
Special Provisions.
1. Authority to Use Savings. Subject to the approval of
the Chief Justice of the Supreme Court in accordance
with Section 25(5), Article VI of the Constitution of the
Republic of the Philippines, the Presiding Justice may be
authorized to use any savings in any item of the
appropriation for the Court of Appeals for purposes of:
(1) improving its compound and facilities; and (2) for
augmenting any deficiency in any item of its
appropriation including its extraordinary expenses and
payment of adjusted pension rates to retired justices
entitled thereto pursuant to Administrative Matter No. 91-
8-225-C.A. (page 1079, General Appropriations Act, FY
1992; Emphasis supplied)
2. Payment of adjustment Pension Rates to Retired
Justices. The amount herein appropriated for payment
of pensions to retired judges and justices shall include
the payment of pensions at the adjusted rates to retired
justices of the Court of Appeals entitled thereto pursuant
to the Ruling of the Supreme Court in Administrative
Matter No. 91-6-225-C.A. (page 1079 General
Appropriations Act, FY 1992).
XL. GENERAL FUND ADJUSTMENT

C. COURT OF APPEALS

Page 4 of 14
 For general fund adjustment for
operational and special requirements
as indicated hereunder P500,000,000
xxx xxx xxx
Special Provisions
1. Use of the Fund. This fund shall be used for:
xxx xxx xxx
1.3. Authorized overdrafts and/or valid
unbooked obligations, including the
payment of back salaries and related
personnel benefits arising from decision
of competent authority including the
Supreme Court decision in
Administrative Matter No. 91-8-225-C.A.
and COA decision in No. 1704." (page
11649 Gen. Appropriations Act, FY
1992; Emphasis supplied)
On January 15, 1992, the President vetoed the underlined portions of
Section 1 and the entire Section 4 the Special Provisions for the
Supreme Court of the Philippines and the Lower Courts (General
Appropriations Act, FY 1992, page 1071) and the underlined portions of
Section 1 and the entire Section 2, of the Special Provisions for the Court
of Appeals (page 1079) and the underlined portions of Section 1.3 of
Article XLV of the Special Provisions of the General Fund Adjustments
(page 1164, General Appropriations Act, FY 1992).
The reason given for the veto of said provisions is that "the resolution of
this Honorable Court in Administrative Matter No. 91-8-225-CA pursuant
to which the foregoing appropriations for the payment of the retired
Justices of the Supreme Court and the Court of Appeals have been
enacted effectively nullified the veto of the President on House Bill No.
16297, the bill which provided for the automatic increase in the
retirement pensions of the Justices of the Supreme Court and the Court
of Appeals and chairmen of the Constitutional Commissions by re-
enacting Republic Act No. 1797 and Republic Act No. 3595. The
President's veto of the aforesaid provisions was further justified by
reiterating the earlier reasons for vetoing House Bill No. 16297: "they
would erode the very foundation of our collective effort to adhere
faithfully to and enforce strictly the policy and standardization of
compensation. We should not permit the grant of distinct privileges to
select group of officials whose retirement pensions under existing laws
already enjoy preferential treatment over those of the vast majority of
our civil servants."
Hence, the instant petition filed by the petitioners with the assertions
that:
1) The subject veto is not an item veto;
2) The veto by the Executive is violative of the doctrine
of separation of powers;
3) The veto deprives the retired Justices of their rights to
the pensions due them;
4) The questioned veto impairs the Fiscal Autonomy
guaranteed by the Constitution.
Raising similar grounds, the petitioners in AM-91-8-225-CA, brought to
the attention of this Court that the veto constitutes no legal obstacle to
the continued payment of the adjusted pensions pursuant to the Court's
resolution.
On February 14, 1992, the Court resolved to consolidate Administrative
Matter No. 91-8-225-CA with G.R. No. 103524.
Page 5 of 14
The petitioners' contentions are well-taken.
I instrument secures and guarantees to them. (Emphasis
It cannot be overstressed that in a constitutional government such as
ours, the rule of law must prevail. The Constitution is the basic and
paramount law to which all other laws must conform and to which all
persons including the highest official of this land must defer. From this
cardinal postulate, it follows that the three branches of government must
discharge their respective functions within the limits of authority
conferred by the Constitution. Under the principle of separation of
powers, neither Congress, the President nor the Judiciary may encroach
on fields allocated to the other branches of government. The legislature
is generally limited to the enactment of laws, the executive to the
enforcement of laws and the judiciary to their interpretation and
application to cases and controversies.
The Constitution expressly confers or the judiciary the power to maintain
inviolate what it decrees. As the guardian of the Constitution we cannot
shirk the duty of seeing to it that the officers in each branch of
government do not go beyond their constitutionally allocated boundaries
and that the entire Government itself or any of its branches does not
violate the basic liberties of the people. The essence of this judicial duty
was emphatically explained by Justice Laurel in the leading case
of Angara v. Electoral Commission, (63 Phil. 139 [1936]) to wit:
The Constitution is a definition of the powers of
government. Who is to determine the nature, scope and
extent of such powers? The Constitution itself has
provided for the instrumentality of the judiciary as the
rational way. And when the judiciary mediates to allocate
constitutional boundaries it does not assert any
superiority over the other department, it does not in
reality nullify or invalidate an act of the legislature, but
only asserts the solemn and sacred obligation assigned
to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the
parties in an actual controversy the rights which that
supplied)
The act of the Executive in vetoing the particular provisions is an
exercise of a constitutionally vested power. But even as the Constitution
grants the power, it also provides limitations to its exercise. The veto
power is not absolute.
The pertinent provision of the Constitution reads:
The President shall have the power to veto any particular
item or items in an appropriation, revenue or tariff bill but
the veto shall not affect the item or items to which he
does not object. (Section 27(2), Article VI, Constitution)
The OSG is correct when it states that the Executive must veto a bill in
its entirety or not at all. He or she cannot act like an editor crossing out
specific lines, provisions, or paragraphs in a bill that he or she dislikes.
In the exercise of the veto power, it is generally all or nothing. However,
when it comes to appropriation, revenue or tariff bills, the Administration
needs the money to run the machinery of government and it can not veto
the entire bill even if it may contain objectionable features. The President
is, therefore, compelled to approve into law the entire bill, including its
undesirable parts. It is for this reason that the Constitution has wisely
provided the "item veto power" to avoid inexpedient riders being
attached to an indispensable appropriation or revenue measure.
The Constitution provides that only a particular item or items may be
vetoed. The power to disapprove any item or items in an appropriate bill
does not grant the authority to veto a part of an item and to approve the
remaining portion of the same item. (Gonzales v. Macaraig, Jr., 191
SCRA 452, 464 [1990])
We distinguish an item from a provision in the following manner:
Page 6 of 14
 The terms item and provision in budgetary legislation appropriation is a provision and not an item. It gives power to the Chief
and practice are concededly different. An item in a bill Justice to transfer funds from one item to another. There is no specific
refers to the particulars, the details, the distinct and appropriation of money involved.
severable parts . . . of the bill (Bengzon, supra, at 916.)
It is an indivisible sum of money dedicated to a stated In the same manner, the provision which states that in compliance with
purpose (Commonwealth v. Dodson, 11 S.E. 2d 120, decisions of the Supreme Court and the Commission on Audit, funds still
124, 125, etc., 176 Va. 281) The United States Supreme undetermined in amount may be drawn from the general fund
Court, in the case of Bengzon v. Secretary of adjustment is not an item. It is the "general fund adjustment" itself which
Justice (299 U.S. 410, 414, 57 Ct. 252, 81 L. Ed, is the item. This was not touched. It was not vetoed.
312) declared "that an "tem" of an appropriation bill
obviously means an item which in itself is a specific More ironic is the fact that misinformation led the Executive to believe
appropriation of money, not some general provision of that the items in the 1992 Appropriations Act were being vetoed when,
law, which happens to be put into an appropriation bill." in fact, the veto struck something else.
(id. at page 465)
What were really vetoed are:
We regret having to state that misimpressions or unfortunately wrong
advice must have been the basis of the disputed veto.
(1) Republic Act No. 1797 enacted as early as June 21, 1957; and
The general fund adjustment is an item which appropriates
(2) The Resolution of the Supreme Court dated November 28, 1991 in
P500,000,000.00 to enable the Government to meet certain unavoidable
Administrative Matter No. 91-8-225-CA.
obligations which may have been inadequately funded by the specific
items for the different branches, departments, bureaus, agencies, and
offices of the government. We need no lengthy justifications or citations of authorities to declare
that no President may veto the provisions of a law enacted thirty-five
(35) years before his or her term of office. Neither may the President set
The President did not veto this item. What were vetoed were methods
aside or reverse a final and executory judgment of this Court through the
or systems placed by Congress to insure that permanent and continuing
exercise of the veto power.
obligations to certain officials would be paid when they fell due.
A few background facts may be reiterated to fully explain the unhappy
An examination of the entire sections and the underlined portions of the
situation.
law which were vetoed will readily show that portions of the item have
been chopped up into vetoed and unvetoed parts. Less than all of an
item has been vetoed. Moreover, the vetoed portions are not items. They Republic Act No. 1797 provided for the adjustment of pensions of retired
are provisions. Justices which privilege was extended to retired members of
Constitutional Commissions by Republic Act No. 3595.
Thus, the augmentation of specific appropriations found inadequate to
pay retirement payments, by transferring savings from other items of

Page 7 of 14
On January 25, 1975, President Marcos issued Presidential Decree No.
644 which repealed Republic Acts 1797 and 3595. Subsequently,
automatic readjustment of pensions for retired Armed Forces officers
and men was surreptitiously restored through Presidential Decree Nos.
1638 and 1909.
It was the impression that Presidential Decree No. 644 had reduced the
pensions of Justices and Constitutional Commissioners which led
Congress to restore the repealed provisions through House Bill No.
16297 in 1990. When her finance and budget advisers gave the wrong
information that the questioned provisions in the 1992 General
Appropriations Act were simply an attempt to overcome her earlier 1990
veto, she issued the veto now challenged in this petition.
It turns out, however, that P.D. No. 644 never became valid law. If P.D.
No. 644 was not law, it follows that Rep. Act No. 1797 was not repealed
and continues to be effective up to the present. In the same way that it
was enforced from 1951 to 1975, so should it be enforced today.
House Bill No. 16297 was superfluous as it tried to restore benefits which
were never taken away validly. The veto of House Bill No. 16297 in 1991
did not also produce any effect. Both were based on erroneous and non-
existent premises.
From the foregoing discussion, it can be seen that when the President
vetoed certain provisions of the 1992 General Appropriations Act, she
was actually vetoing Republic Act No. 1797 which, of course, is beyond
her power to accomplish.
Presidential Decree No. 644 which purportedly repealed Republic Act
No. 1717 never achieved that purpose because it was not properly
published. It never became a law.
The case of Tañda v. Tuvera (134 SCRA 27 [1985]and 146 SCRA 446
[1986]) specifically requires that "all laws shall immediately upon their
approval or as soon thereafter as possible, be published in full in the
Official Gazette, to become effective only after fifteen days from their
publication, or on another date specified by the legislature, in
accordance with Article 2 of the Civil Code." This was the Court's answer
to the petition of Senator Lorenzo Tañada and other opposition leaders
who challenged the validity of Marcos' decrees which, while never
published, were being enforced. Secret decrees are anathema in a free
society.
In support of their request, the petitioners in Administrative Matter No.
91-9-225-CA secured certification from Director Lucita C. Sanchez of the
National Printing Office that the April 4, 1977 Supplement to the Official
Gazette was published only on September 5, 1983 and officially
released on September 29, 1983.
On the issue of whether or not Presidential Decree 644 became law, the
Court has already categorically spoken in a definitive ruling on the
matter, to wit:
xxx xxx xxx
PD 644 was promulgated by President Marcos on
January 24, 1975, but was not immediately or soon
thereafter published although preceding and subsequent
decrees were duly published in the Official Gazette. It
now appears that it was intended as a secret decree
"NOT FOR PUBLICATION" as the notation on the face
of the original copy thereof plainly indicates (Annex B). It
is also clear that the decree was published in the back-
dated Supplement only after it was challenged in
the Tañada case as among the presidential decrees that
had not become effective for lack of the required
publication. The petition was filed on May 7, 1983, four
months before the actual publication of the decree.
It took more than eight years to publish the decree after
its promulgation in 1975. Moreover, the publication was
Page 8 of 14
 made in bad faith insofar as it purported to show that it
was done in 1977 when the now demonstrated fact is
that the April 4, 1977 supplement was actually published
and released only in September 1983. The belated
publication was obviously intended to refute the
petitioner's claim in the Tañada case and to support the
Solicitor General's submission that the petition had
become moot and academic.
xxx xxx xxx
We agree that PD 644 never became a law because it
was not validly published and that, consequently, it did
not have the effect of repealing RA 1797. The requesting
Justices (including Justice Lood, whose request for the
upgrading of his pension was denied on January 15,
1991) are therefore entitled to be paid their monthly
pensions on the basis of the latter measure, which
remains unchanged to date.
The Supreme Court has spoken and it has done so with finality, logically
and rightly so as to assure stability in legal relations, and avoid
confusion. (see Ver v. Quetullo, 163 SCRA 80 [1988]) Like other
decisions of this Court, the ruling and principles set out in the Court
resolution constitute binding precedent. (Bulig-Bulig Kita Kamaganak
Association, et al. v. Sulpicio Lines, Inc., Regional Trial Court, etc., G.R.
847500 16 May 1989, En Banc, Minute Resolution)
The challenged veto has far-reaching implications which the Court can
not countenance as they undermine the principle of separation of
powers. The Executive has no authority to set aside and overrule a
decision of the Supreme Court.
We must emphasize that the Supreme Court did not enact Rep. Act No.
1797. It is not within its powers to pass laws in the first place. Its duty is
confined to interpreting or defining what the law is and whether or not it
violates a provision of the Constitution.
As early as 1953, Congress passed a law providing for retirement
pensions to retired Justices of the Supreme Court and the Court of
Appeals. This law was amended by Republic Act 1797 in 1957. Funds
necessary to pay the retirement pensions under these statutes are
deemed automatically appropriated every year.
Thus, Congress included in the General Appropriations Act of 1992,
provisions identifying funds and savings which may be used to pay the
adjusted pensions pursuant to the Supreme Court Resolution. As long
as retirement laws remain in the statute book, there is an existing
obligation on the part of the government to pay the adjusted pension rate
pursuant to RA 1797 and AM-91-8-225-CA.
Neither may the veto power of the President be exercised as a means
of repealing RA 1797. This is arrogating unto the Presidency legislative
powers which are beyond its authority. The President has no power to
enact or amend statutes promulgated by her predecessors much less to
repeal existing laws. The President's power is merely to execute the
laws as passed by Congress.
II
There is a matter of greater consequence arising from this petition. The
attempt to use the veto power to set aside a Resolution of this Court and
to deprive retirees of benefits given them by Rep. Act No. 1797 trenches
upon the constitutional grant of fiscal autonomy to the Judiciary.
Sec. 3, Art. VIII mandates that:
Sec. 3 The Judiciary shall enjoy fiscal autonomy.
Appropriations for the Judiciary may not be reduced by
the legislature below the amount appropriated for the
Page 9 of 14
 previous year and, after approval, shall be automatically
and regularly released.
We can not overstress the importance of and the need for an
independent judiciary. The Court has on various past occasions
explained the significance of judicial independence. In the case of De la
Llana v. Alba (112 SCRA 294 [1982]), it ruled:
It is a cardinal rule of faith of our constitutional regime
that it is the people who are endowed with rights, to
secure which a government is instituted. Acting as it
does through public officials, it has to grant them either
expressly or implicitly certain powers. These they
exercise not for their own benefit but for the body politic.
...
A public office is a public trust. That is more than a moral
adjuration. It is a legal imperative. The law may vest in a
public official certain rights. It does so to enable them to
perform his functions and fulfill his responsibilities more
efficiently. . . . It is an added guarantee that justices and
judges can administer justice undeterred by any fear of
reprisal or untoward consequence. Their judgments then
are even more likely to be inspired solely by their
knowledge of the law and the dictates of their
conscience, free from the corrupting influence of base or
unworthy motives. The independence of which they are
assured is impressed with a significance transcending
that of a purely personal right. (At pp. 338-339)
The exercise of the veto power in this case may be traced back to the
efforts of the Department of Budget and Management (DBM) to ignore
or overlook the plain mandate of the Constitution on fiscal autonomy.
The OSG Comment reflects the same truncated view of the provision.
We have repeatedly in the past few years called the attention of DBM
that not only does it allocate less than one percent (1%) of the national
budget annually for the 22,769 Justices, Judges, and court personnel all
over the country but it also examines with a fine-toothed come how we
spend the funds appropriated by Congress based on DBM
recommendations.
The gist of our position papers and arguments before Congress is as
follows:
The DBM requires the Supreme Court, with
Constitutional Commissions, and the Ombudsman to
submit budget proposals in accordance with parameters
it establishes. DBM evaluates the proposals, asks each
agency to defend its proposals during DBM budget
hearings, submits its own version of the proposals to
Congress without informing the agency of major
alterations and mutilations inflicted on their proposals,
and expects each agency to defend in Congress
proposals not of the agency's making.
After the general appropriations bill is passed by
Congress and signed into law by the President, the tight
and officious control by DBM continues. For the release
of appropriated funds, the Judiciary, Constitutional
Commissions, and Ombudsman are instructed through
"guidelines", how to prepare Work and Financial Plans
and requests for monthly allotments. The DBM
evaluates and approves these plans and requests and
on the basis of its approval authorizes the release of
allotments with corresponding notices of cash allocation.
These notices specify the maximum withdrawals each
month which the Supreme Court, the Commissions and
the Ombudsman may make from the servicing
government bank. The above agencies are also required
to submit to DBM monthly, quarterly and year-end
Page 10 of 14
 budget accountability reports to indicate their
performance, physical and financial operations and
income,
The DBM reserves to itself the power to review the
accountability reports and when importuned for needed
funds, to release additional allotments to the agency.
Since DBM always prunes the budget proposals to
below subsistence levels and since emergency
situations usually occur during the fiscal year, the Chief
Justices, Chairmen of the Commissions, and
Ombudsman are compelled to make pilgrimages to DBM
for additional funds to tide their respective agencies over
the emergency.
What is fiscal autonomy?
As envisioned in the Constitution, the fiscal autonomy enjoyed by the
Judiciary, the Civil Service Commission, the Commission on Audit, the
Commission on Elections, and the Office of the Ombudsman
contemplates a guarantee on full flexibility to allocate and utilize their
resources with the wisdom and dispatch that their needs require. It
recognizes the power and authority to levy, assess and collect fees, fix
rates of compensation not exceeding the highest rates authorized by law
for compensation and pay plans of the government and allocate and
disburse such sums as may be provided by law or prescribed by them
in the course of the discharge of their functions.
Fiscal autonomy means freedom from outside control. If the Supreme
Court says it needs 100 typewriters but DBM rules we need only 10
typewriters and sends its recommendations to Congress without even
informing us, the autonomy given by the Constitution becomes an empty
and illusory platitude.
The Judiciary, the Constitutional Commissions, and the Ombudsman
must have the independence end flexibility needed in the discharge of
their constitutional duties. The imposition of restrictions and constraints
on the manner the independent constitutional offices allocate and utilize
the funds appropriated for their operations is anathema to fiscal
autonomy and violative not only of the express mandate of the
Constitution but especially as regards the Supreme Court, of the
independence and separation of powers upon which the entire fabric of
our constitutional system is based. In the interest of comity and
cooperation, the Supreme Court, Constitutional Commissions, and the
Ombudsman have so far limited their objections to constant reminders.
We now agree with the petitioners that this grant of autonomy should
cease to be a meaningless provision.
In the case at bar, the veto of these specific provisions in the General
Appropriations Act is tantamount to dictating to the Judiciary how its
funds should be utilized, which is clearly repugnant to fiscal autonomy.
The freedom of the Chief Justice to make adjustments in the utilization
of the funds appropriated for the expenditures of the judiciary, including
the use of any savings from any particular item to cover deficits or
shortages in other items of the Judiciary is withheld. Pursuant to the
Constitutional mandate, the Judiciary must enjoy freedom in the
disposition of the funds allocated to it in the appropriations law. It knows
its priorities just as it is aware of the fiscal restraints. The Chief Justice
must be given a free hand on how to augment appropriations where
augmentation is needed.
Furthermore, in the case of Gonzales v. Macaraig (191 SCRA 452
[1990]), the Court upheld the authority of the President and other key
officials to augment any item or any appropriation from savings in the
interest of expediency and efficiency. The Court stated that:
There should be no question, therefore, that statutory
authority has, in fact, been granted. And once given, the
heads of the different branches of the Government and
those of the Constitutional Commissions are afforded
considerable flexibility in the use of public funds and
resources (Demetria v. Alba, supra). The doctrine of
Page 11 of 14
 separation of powers is in no way endangered because
the transfer is made within a department (or branch of
government) and not from one department (branch) to
another.
The Constitution, particularly Article VI, Section 25(5) also provides:
Sec. 25. (5) No law shall be passed authorizing any
transfer of appropriations; however, the President, the
President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions
may, by law, be authorized to augment any item in the
general appropriations law for their respective offices
from savings in other items of their respective
appropriations.
In the instant case, the vetoed provisions which relate to the use of
savings for augmenting items for the payment of the pension
differentials, among others, are clearly in consonance with the
abovestated pronouncements of the Court. The veto impairs the power
of the Chief Justice to augment other items in the Judiciary's
appropriation, in contravention of the constitutional provision on "fiscal
autonomy."
III
Finally, it can not be denied that the retired Justices have a vested right
to the accrued pensions due them pursuant to RA 1797.
The right to a public pension is of statutory origin and statutes dealing
with pensions have been enacted by practically all the states in the
United States (State ex rel. Murray v, Riley, 44 Del 505, 62 A2d 236),
and presumably in most countries of the world. Statutory provisions for
the support of Judges or Justices on retirement are founded on services
rendered to the state. Where a judge has complied with the statutory
prerequisite for retirement with pay, his right to retire and draw salary
becomes vested and may not, thereafter, be revoked or impaired. (Gay
v. Whitehurst, 44 So ad 430)
Thus, in the Philippines, a number of retirement laws have been
enacted, the purpose of which is to entice competent men and women
to enter the government service and to permit them to retire therefrom
with relative security, not only those who have retained their vigor but,
more so, those who have been incapacitated by illness or accident. (In
re: Amount of the Monthly Pension of Judges and Justices Starting From
the Sixth Year of their Retirement and After the Expiration of the Initial
Five-year Period of Retirement, (190 SCRA 315 [1990]).
As early as 1953, Rep. Act No. 910 was enacted to grant pensions to
retired Justices of the Supreme Court and Court of Appeals.
This was amended by RA 1797 which provided for an automatic
adjustment of the pension rates. Through the years, laws were enacted
and jurisprudence expounded to afford retirees better benefits.
P.D. No. 1438, for one, was promulgated on June 10, 1978 amending
RA 910 providing that the lump sum of 5 years gratuity to which the
retired Justices of the Supreme Court and Court of Appeals were entitled
was to be computed on the basis of the highest monthly aggregate of
transportation, living and representation allowances each Justice was
receiving on the date of his resignation. The Supreme Court in a
resolution dated October 4, 1990, stated that this law on gratuities
covers the monthly pensions of retired Judges and Justices which
should include the highest monthly aggregate of transportation, living
and representation allowances the retiree was receiving on the date of
retirement. (In Re: Amount of the Monthly Pension of Judges and
Justices, supra)
The rationale behind the veto which implies that Justices and
Constitutional officers are unduly favored is, again, a misimpression.
Page 12 of 14
Immediately, we can state that retired Armed Forces officers
and enlisted men number in the tens of thousands while retired Justices
are so few they can be immediately identified. Justices retire at age 70
while military men retire at a much younger age — some retired
Generals left the military at age 50 or earlier. Yet the benefits in Rep. Act
No. 1797 are made to apply equally to both groups. Any ideas arising
from an alleged violation of the equal protection clause should first be
directed to retirees in the military or civil service where the reason for the
retirement provision is not based on indubitable and constitutionally
sanctioned grounds, not to a handful of retired Justices whose retirement
pensions are founded on constitutional reasons.
The provisions regarding retirement pensions of justices arise from the
package of protections given by the Constitution to guarantee and
preserve the independence of the Judiciary.
The Constitution expressly vests the power of judicial review in this
Court. Any institution given the power to declare, in proper cases, that
act of both the President and Congress are unconstitutional needs a high
degree of independence in the exercise of its functions. Our jurisdiction
may not be reduced by Congress. Neither may it be increased without
our advice and concurrence. Justices may not be removed until they
reach age 70 except through impeachment. All courts and court
personnel are under the administrative supervision of the Supreme
Court. The President may not appoint any Judge or Justice unless he or
she has been nominated by the Judicial and Bar Council which, in turn,
is under the Supreme Court's supervision. Our salaries may not be
decreased during our continuance in office. We cannot be designated to
any agency performing administrative or quasi-judicial functions. We are
specifically given fiscal autonomy. The Judiciary is not only independent
of, but also co-equal and coordinate with the Executive and Legislative
Departments. (Article VIII and section 30, Article VI, Constitution)
Any argument which seeks to remove special privileges given by law to
former Justices of this Court and the ground that there should be no
"grant of distinct privileges" or "preferential treatment" to retired Justices
ignores these provisions of the Constitution and, in effect, asks that
these Constitutional provisions on special protections for the Judiciary
be repealed. The integrity of our entire constitutional system is premised
to a large extent on the independence of the Judiciary. All these
provisions are intended to preserve that independence. So are the laws
on retirement benefits of Justices.
One last point.
The Office of the Solicitor General argues that:
. . . Moreover, by granting these benefits to retired
Justices implies that public funds, raised from taxes on
other citizens, will be paid off to select individuals who
are already leading private lives and have ceased
performing public service. Said the United States
Supreme Court, speaking through Mr. Justice Miller: "To
lay with one hand the power of the government on the
property of the citizen, and with the other to bestow upon
favored individuals . . . is nonetheless a robbery because
it is done under the forms of law . . ." (Law Association
V. Topeka, 20 Wall. 655) (Comment, p. 16)
The above arguments are not only specious, impolite and offensive; they
certainly are unbecoming of an office whose top officials are supposed
to be, under their charter, learned in the law.
Chief Justice Cesar Bengzon and Chief Justice Querube Makalintal,
Justices J.B.L. Reyes, Cecilia Muñoz Palma, Efren Plana, Vicente Abad
Santos, and, in fact, all retired Justices of the Supreme Court and the
Court of Appeals may no longer be in the active service. Still, the
Solicitor General and all lawyers under him who represent the
government before the two courts and whose predecessors themselves
appeared before these retirees, should show some continuing esteem
and good manners toward these Justices who are now in the evening of
their years.
Page 13 of 14
All that the retirees ask is to be given the benefits granted by law. To
characterize them as engaging in "robbery" is intemperate, abrasive,
and disrespectful more so because the argument is unfounded.
If the Comment is characteristic of OSG pleadings today, then we are
sorry to state that the then quality of research in that institution has
severely deteriorated.
In the first place, the citation of the case is, wrong. The title is not LAW
Association v. Topeka but Citizen's Savings and Loan Association of
Cleveland, Ohio v. Topeka City (20 Wall. 655; 87 U.S. 729; 22 Law. Ed.
455 [1874]. Second, the case involved the validity of a statute
authorizing cities and counties to issue bonds for the purpose of building
bridges, waterpower, and other public works to aid private railroads
improve their services. The law was declared void on the ground that the
right of a municipality to impose a tax cannot be used for private
interests.
The case was decided in 1874. The world has turned over more than
40,000 times since that ancient period. Public use is now equated with
public interest. Public money may now be used for slum clearance, low-
cost housing, squatter resettlement, urban and agrarian reform where
only private persons are the immediate beneficiaries. What was
"robbery" in 1874 is now called "social justice." There is nothing about
retirement benefits in the cited case. Obviously, the OSG lawyers cited
from an old textbook or encyclopedia which could not even spell "loan"
correctly. Good lawyers are expected to go to primary sources and to
use only relevant citations.
The Court has been deluged with letters and petitions by former
colleagues in the Judiciary requesting adjustments in their pensions just
so they would be able to cope with the everyday living expenses not to
mention the high cost of medical bills that old age entails. As Justice
Cruz aptly stated in Teodoro J. Santiago v. COA, (G.R. No. 92284, July
12, 1991);
Retirement laws should be interpreted liberally in favor
of the retiree because their intention is to provide for his
sustenance, and hopefully even comfort, when he no
longer has the stamina to continue earning his livelihood.
After devoting the best years of his life to the public
service, he deserves the appreciation of a grateful
government as best concretely expressed in a generous
retirement gratuity commensurate with the value and
length of his services. That generosity is the least he
should expect now that his work is done and his youth is
gone. Even as he feels the weariness in his bones and
glimpses the approach of the lengthening shadows, he
should be able to luxuriate in the thought that he did his
task well, and was rewarded for it.
For as long as these retired Justices are entitled under laws which
continue to be effective, the government can not deprive them of their
vested right to the payment of their pensions.
WHEREFORE, the petition is hereby GRANTED. The questioned veto
is SET ASIDE as illegal and unconstitutional. The vetoed provisions of
the 1992 Appropriations Act are declared valid and subsisting. The
respondents are ordered to automatically and regularly release pursuant
to the grant of fiscal autonomy the funds appropriated for the subject
pensions as well as the other appropriations for the Judiciary. The
resolution in Administrative Matter No. 91-8-225-CA dated November
28, 1991 is likewise ordered to be implemented as promulgated.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Cruz, Paras, Feliciano, Padilla, Bidin,
Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon,
JJ., concur.
Bellosillo, J., is on leave.
Page 14 of 14
 EN BANC
G.R. No. 139465 January 18, 2000
SECRETARY OF JUSTICE, petitioner,
vs.
HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of
Manila, Branch 25, and MARK B. JIMENEZ, respondents.
MELO, J.:
The individual citizen is but a speck of particle or molecule vis-à-vis the vast
and overwhelming powers of government. His only guarantee against
oppression and tyranny are his fundamental liberties under the Bill of Rights
which shield him in times of need. The Court is now called to decide whether
to uphold a citizen's basic due process rights, or the government's ironclad
duties under a treaty. The bugle sounds and this Court must once again act
as the faithful guardian of the fundamental writ.
The petition at our doorstep is cast against the following factual backdrop:
On January 13, 1977, then President Ferdinand E. Marcos issued
Presidential Decree No. 1069 "Prescribing the Procedure for the Extradition
of Persons Who Have Committed Crimes in a Foreign Country". The Decree
is founded on: the doctrine of incorporation under the Constitution; the
mutual concern for the suppression of crime both in the state where it was
committed and the state where the criminal may have escaped; the
extradition treaty with the Republic of Indonesia and the intention of the
Philippines to enter into similar treaties with other interested countries; and
the need for rules to guide the executive department and the courts in the
proper implementation of said treaties.
On November 13, 1994, then Secretary of Justice Franklin M. Drilon,
representing the Government of the Republic of the Philippines, signed in
Manila the "Extradition Treaty Between the Government of the Republic of
the Philippines and the Government of the United States of America"
(hereinafter referred to as the RP-US Extradition Treaty). The Senate, by
way of Resolution No. 11, expressed its concurrence in the ratification of
said treaty. It also expressed its concurrence in the Diplomatic Notes
correcting Paragraph (5)(a), Article 7 thereof (on the admissibility of the
documents accompanying an extradition request upon certification by the
principal diplomatic or consular officer of the requested state resident in the
Requesting State).
On June 18, 1999, the Department of Justice received from the Department
of Foreign Affairs U.S. Note Verbale No. 0522 containing a request for the
extradition of private respondent Mark Jimenez to the United States.
Attached to the Note Verbale were the Grand Jury Indictment, the warrant
of arrest issued by the U.S. District Court, Southern District of Florida, and
other supporting documents for said extradition. Based on the papers
submitted, private respondent appears to be charged in the United States
with violation of the following provisions of the United States Code (USC):
A) 18 USC 371 (Conspiracy to commit offense or to defraud the
United States; two [2] counts; Maximum Penalty — 5 years on each
count);
B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts;
Maximum Penalty — 5 years on each count);
C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts;
Maximum Penalty — 5 years on each count);
D) 18 USC 1001 (False statement or entries; six [6] counts;
Maximum Penalty — 5 years on each count);
E) 2 USC 441f (Election contributions in name of another; thirty-
three [33] counts; Maximum Penalty — less than one year).
(p. 14, Rollo.)
On the same day, petitioner issued Department Order No. 249 designating
and authorizing a panel of attorneys to take charge of and to handle the
case pursuant to Section 5(1) of Presidential Decree No. 1069. Accordingly,
Page 1 of 17
the panel began with the "technical evaluation and assessment" of the
extradition request and the documents in support thereof. The panel found
that the "official English translation of some documents in Spanish were not
attached to the request and that there are some other matters that needed
to be addressed" (p. 15, Rollo).
Pending evaluation of the aforestated extradition documents, private
respondent, through counsel, wrote a letter dated July 1, 1999 addressed
to petitioner requesting copies of the official extradition request from the
U.S. Government, as well as all documents and papers submitted therewith;
and that he be given ample time to comment on the request after he shall
have received copies of the requested papers. Private respondent also
requested that the proceedings on the matter be held in abeyance in the
meantime.
Later, private respondent requested that preliminary, he be given at least a
copy of, or access to, the request of the United States Government, and
after receiving a copy of the Diplomatic Note, a period of time to amplify on
his request.
In response to private respondent's July 1, 1999 letter, petitioner, in a reply-
letter dated July 13, 1999 (but received by private respondent only on
August 4, 1999), denied the foregoing requests for the following reasons:
1. We find it premature to furnish you with copies of the extradition
request and supporting documents from the United States
Government, pending evaluation by this Department of the
sufficiency of the extradition documents submitted in accordance
with the provisions of the extradition treaty and our extradition law.
Article 7 of the Extradition Treaty between the Philippines and the
United States enumerates the documentary requirements and
establishes the procedures under which the documents submitted
shall be received and admitted as evidence. Evidentiary
requirements under our domestic law are also set forth in Section 4
of P.D. No. 1069.
Evaluation by this Department of the aforementioned documents is
not a preliminary investigation nor akin to preliminary investigation
of criminal cases. We merely determine whether the procedures
and requirements under the relevant law and treaty have been
complied with by the Requesting Government. The constitutionally
guaranteed rights of the accused in all criminal prosecutions are
therefore not available.
It is only after the filing of the petition for extradition when the person
sought to be extradited will be furnished by the court with copies of
the petition, request and extradition documents and this Department
will not pose any objection to a request for ample time to evaluate
said documents.
2. The formal request for extradition of the United States contains
grand jury information and documents obtained through grand jury
process covered by strict secrecy rules under United States law.
The United States had to secure orders from the concerned District
Courts authorizing the United States to disclose certain grand jury
information to Philippine government and law enforcement
personnel for the purpose of extradition of Mr. Jimenez. Any further
disclosure of the said information is not authorized by the United
States District Courts. In this particular extradition request the
United States Government requested the Philippine Government to
prevent unauthorized disclosure of the subject information. This
Department's denial of your request is consistent with Article 7 of
the RP-US Extradition Treaty which provides that the Philippine
Government must represent the interests of the United States in any
proceedings arising out of a request for extradition. The Department
of Justice under P.D. No. 1069 is the counsel of the foreign
governments in all extradition requests.
3. This Department is not in a position to hold in abeyance
proceedings in connection with an extradition request. Article 26 of
the Vienna Convention on the Law of Treaties, to which we are a
party provides that "[E]very treaty in force is binding upon the parties
to it and must be performed by them in good faith". Extradition is a
tool of criminal law enforcement and to be effective, requests for
extradition or surrender of accused or convicted persons must be
processed expeditiously.
Page 2 of 17
 (pp. 77-78, Rollo.)
Such was the state of affairs when, on August 6, 1999, private respondent
filed with the Regional Trial Court of the National Capital Judicial Region a
petition against the Secretary of Justice, the Secretary of Foreign Affairs,
and the Director of the National Bureau of Investigation, for mandamus (to
compel herein petitioner to furnish private respondent the extradition
documents, to give him access thereto, and to afford him an opportunity to
comment on, or oppose, the extradition request, and thereafter to evaluate
the request impartially, fairly and objectively); certiorari (to set aside herein
petitioner's letter dated July 13, 1999); and prohibition (to restrain petitioner
from considering the extradition request and from filing an extradition
petition in court; and to enjoin the Secretary of Foreign Affairs and the
Director of the NBI from performing any act directed to the extradition of
private respondent to the United States), with an application for the issuance
of a temporary restraining order and a writ of preliminary injunction (pp. 104-
105, Rollo).
The aforementioned petition was docketed as Civil Case No. 99-94684 and
thereafter raffled to Branch 25 of said regional trial court stationed in Manila
which is presided over by the Honorable Ralph C. Lantion.
After due notice to the parties, the case was heard on August 9, 1999.
Petitioner, who appeared in his own behalf, moved that he be given ample
time to file a memorandum, but the same was denied.
On August 10, 1999, respondent judge issued an order dated the previous
day, disposing:
WHEREFORE, this Court hereby Orders the respondents, namely:
the Secretary of Justice, the Secretary of Foreign Affairs and the
Director of the National Bureau of Investigation, their agents and/or
representatives to maintain the status quo by refraining from
committing the acts complained of; from conducting further
proceedings in connection with the request of the United States
Government for the extradition of the petitioner; from filing the
corresponding Petition with a Regional Trial court; and from
performing any act directed to the extradition of the petitioner to the
United States, for a period of twenty (20) days from service on
respondents of this Order, pursuant to Section 5, Rule 58 of the
1997 Rules of Court.
The hearing as to whether or not this Court shall issue the
preliminary injunction, as agreed upon by the counsels for the
parties herein, is set on August 17, 1999 at 9:00 o'clock in the
morning. The respondents are, likewise, ordered to file their written
comment and/or opposition to the issuance of a Preliminary
Injunction on or before said date.
SO ORDERED.
(pp. 110-111, Rollo.)
Forthwith, petitioner initiated the instant proceedings, arguing that:
PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE:
I.
BY ORDERING HEREIN PETITIONER TO REFRAIN FROM
COMMITTING THE ACTS COMPLAINED OF, I.E., TO DESIST
FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE
OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND
FROM DENYING PRIVATE RESPONDENT AN OPPORTUNITY
TO FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST,
THE MAIN PRAYER FOR A WRIT OF MANDAMUS IN THE
PETITION FOR MANDAMUS, CERTIORARI AND PROHIBITION
WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN
ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES;
II.
Page 3 of 17
 PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM
PERFORMING LEGAL DUTIES UNDER THE EXTRADITION
TREATY AND THE PHILIPPINE EXTRADITION LAW;
III.
THE PETITION FOR (MANDAMUS), CERTIORARI AND
PROHIBITION IS, ON ITS FACE, FORMALLY AND
SUBSTANTIALLY DEFICIENT; AND
IV.
PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS
PROTECTION AND ENFORCEMENT, AND WILL NOT SUFFER
ANY IRREPARABLE INJURY.
(pp. 19-20, Rollo.)
On August 17, 1999, the Court required private respondent to file his
comment. Also issued, as prayed for, was a temporary restraining order
(TRO) providing:
NOW, THEREFORE, effective immediately and continuing until
further orders from this Court, You, Respondent Judge Ralph C.
Lantion, your agents, representatives or any person or persons
acting in your place or stead are hereby ORDERED to CEASE and
DESIST from enforcing the assailed order dated August 9, 1999
issued by public respondent in Civil Case No. 99-94684.
GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice,
Supreme Court of the Philippines, this 17th day of August 1999.
(pp. 120-121, Rollo.)
The case was heard on oral argument on August 31, 1999, after which the
parties, as directed, filed their respective memoranda.
From the pleadings of the opposing parties, both procedural and substantive
issues are patent. However, a review of these issues as well as the
extensive arguments of both parties, compel us to delineate the focal point
raised by the pleadings: During the evaluation stage of the extradition
proceedings, is private respondent entitled to the two basic due process
rights of notice and hearing? An affirmative answer would necessarily
render the proceedings at the trial court, moot and academic (the issues of
which are substantially the same as those before us now), while a negative
resolution would call for the immediate lifting of the TRO issued by this Court
dated August 24, 1999, thus allowing petitioner to fast-track the process
leading to the filing of the extradition petition with the proper regional trial
court. Corollarily, in the event that private respondent is adjudged entitled to
basic due process rights at the evaluation stage of the extradition
proceedings, would this entitlement constitute a breach of the legal
commitments and obligations of the Philippine Government under the RP-
US Extradition Treaty? And assuming that the result would indeed be a
breach, is there any conflict between private respondent's basic due
process rights and the provisions of the RP-US Extradition Treaty?
The issues having transcendental importance, the Court has elected to go
directly into the substantive merits of the case, brushing aside peripheral
procedural matters which concern the proceedings in Civil Case No. 99-
94684, particularly the propriety of the filing of the petition therein, and of
the issuance of the TRO of August 17, 1999 by the trial court.
To be sure, the issues call for a review of the extradition procedure. The RP-
US Extradition Treaty which was executed only on November 13, 1994,
ushered into force the implementing provisions of Presidential Decree No.
1069, also called as the Philippine Extradition Law. Section 2(a) thereof
defines extradition as "the removal of an accused from the Philippines with
the object of placing him at the disposal of foreign authorities to enable the
requesting state or government to hold him in connection with any criminal
investigation directed against him or the execution of a penalty imposed on
him under the penal or criminal law of the requesting state or government."
The portions of the Decree relevant to the instant case which involves a
charged and not convicted individual, are abstracted as follows:
The Extradition Request
Page 4 of 17
The request is made by the Foreign Diplomat of the Requesting State,
addressed to the Secretary of Foreign Affairs, and shall be accompanied by:
1. The original or an authentic copy of the criminal charge and the
warrant of arrest issued by the authority of the Requesting State
having jurisdiction over the matter, or some other instruments
having equivalent legal force;
2. A recital of the acts for which extradition is requested, with the
fullest particulars as to the name and identity of the accused, his
whereabouts in the Philippines, if known, the acts or omissions
complained of, and the time and place of the commission of these
acts;
3. The text of the applicable law or a statement of the contents of
said law, and the designation or description of the offense by the
law, sufficient for evaluation of the request; and
4. Such other documents or information in support of the request.
(Sec. 4. Presidential Decree No. 1069.)
Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary
of Foreign Affairs, pertinently provides
. . . (1) Unless it appears to the Secretary of Foreign Affairs that the
request fails to meet the requirements of this law and the relevant
treaty or convention, he shall forward the request together with the
related documents to the Secretary of Justice, who shall
immediately designate and authorize an attorney in his office to take
charge of the case.
The above provision shows only too clearly that the executive authority
given the task of evaluating the sufficiency of the request and the supporting
documents is the Secretary of Foreign Affairs. What then is the coverage of
this task?
In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition
Treaty, the executive authority must ascertain whether or not the request is
supported by:
1. Documents, statements, or other types of information which
describe the identity and probable location of the person sought;
2. A statement of the facts of the offense and the procedural history
of the case;
3. A statement of the provisions of the law describing the essential
elements of the offense for which extradition is requested;
4. A statement of the provisions of law describing the punishment
for the offense;
5. A statement of the provisions of the law describing any time limit
on the prosecution or the execution of punishment for the offense;
6. Documents, statements, or other types of information specified in
paragraph 3 or paragraph 4 of said Article, as applicable.
(Paragraph 2, Article 7, Presidential Decree No. 1069.)
7. Such evidence as, according to the law of the Requested State,
would provide probable cause for his arrest and committal for trial if
the offense had been committed there;
8. A copy of the warrant or order of arrest issued by a judge or other
competent authority; and
9. A copy of the charging document.
(Paragraph 3, ibid.)
Page 5 of 17
The executive authority (Secretary of Foreign Affairs) must also see to it that
the accompanying documents received in support of the request had been
certified by the principal diplomatic or consular officer of the Requested
State resident in the Requesting State (Embassy Note No. 052 from U. S.
Embassy; Embassy Note No. 951309 from the Department of Foreign
Affairs).
In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition
shall not be granted if the executive authority of the Requested State
determines that the request is politically motivated, or that the offense is a
military offense which is not punishable under non-military penal legislation."
The Extradition Petition
Upon a finding made by the Secretary of Foreign Affairs that the extradition
request and its supporting documents are sufficient and complete in form
and substance, he shall deliver the same to the Secretary of Justice, who
shall immediately designate and authorize an attorney in his office to take
charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer
designated shall then file a written petition with the proper regional trial court
of the province or city, with a prayer that the court take the extradition
request under consideration (Paragraph [2], ibid.).
The presiding judge of the regional trial court, upon receipt of the petition for
extradition, shall, as soon as practicable, issue an order summoning the
prospective extraditee to appear and to answer the petition on the day and
hour fixed in the order. The judge may issue a warrant of arrest if it appears
that the immediate arrest and temporary detention of the accused will best
serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to
prevent the flight of the prospective extraditee.
The Extradition Hearing
The Extradition Law does not specifically indicate whether the extradition
proceeding is criminal, civil, or a special proceeding. Nevertheless,
Paragraph [1], Section 9 thereof provides that in the hearing of the
extradition petition, the provisions of the Rules of Court, insofar as
practicable and not inconsistent with the summary nature of the
proceedings, shall apply. During the hearing, Section 8 of the Decree
provides that the attorney having charge of the case may, upon application
by the Requesting State, represent the latter throughout the proceedings.
Upon conclusion of the hearing, the court shall render a decision granting
the extradition and giving the reasons therefor upon a showing of the
existence of a prima facie case, or dismiss the petition (Section 10, ibid.).
Said decision is appealable to the Court of Appeals, whose decision shall
be final and immediately executory (Section 12, ibid.). The provisions of the
Rules of Court governing appeal in criminal cases in the Court of Appeals
shall apply in the aforementioned appeal, except for the required 15-day
period to file brief (Section 13, ibid.).
The trial court determines whether or not the offense mentioned in the
petition is extraditable based on the application of the dual criminality rule
and other conditions mentioned in Article 2 of the RP-US Extradition Treaty.
The trial court also determines whether or not the offense for which
extradition is requested is a political one (Paragraph [1], Article 3, RP-US
Extradition Treaty).1âwphi1.nêt
With the foregoing abstract of the extradition proceedings as backdrop, the
following query presents itself: What is the nature of the role of the
Department of Justice at the evaluation stage of the extradition
proceedings?
A strict observance of the Extradition Law indicates that the only duty of the
Secretary of Justice is to file the extradition petition after the request and all
the supporting papers are forwarded to him by the Secretary of Foreign
Affairs. It is the latter official who is authorized to evaluate the extradition
papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the
Treaty, to determine whether or not the request is politically motivated, or
that the offense is a military offense which is not punishable under non-
military penal legislation. Ipso facto, as expressly provided in Paragraph [1],
Section 5 of the Extradition Law, the Secretary of Justice has the ministerial
duty of filing the extradition papers.
Page 6 of 17
However, looking at the factual milieu of the case before us, it would appear
that there was failure to abide by the provisions of Presidential Decree No.
1069. For while it is true that the extradition request was delivered to the
Department of Foreign Affairs on June 17, 1999, the following day or less
than 24 hours later, the Department of Justice received the request,
apparently without the Department of Foreign Affairs discharging its duty of
thoroughly evaluating the same and its accompanying documents. The
statement of an assistant secretary at the Department of Foreign Affairs that
his Department, in this regard, is merely acting as a post office, for which
reason he simply forwarded the request to the Department of Justice,
indicates the magnitude of the error of the Department of Foreign Affairs in
taking lightly its responsibilities. Thereafter, the Department of Justice took
it upon itself to determine the completeness of the documents and to
evaluate the same to find out whether they comply with the requirements
laid down in the Extradition Law and the RP-US Extradition Treaty.
Petitioner ratiocinates in this connection that although the Department of
Justice had no obligation to evaluate the extradition documents, the
Department also had to go over them so as to be able to prepare an
extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at
this stage where private respondent insisted on the following; (1) the right
to be furnished the request and the supporting papers; (2) the right to be
heard which consists in having a reasonable period of time to oppose the
request, and to present evidence in support of the opposition; and (3) that
the evaluation proceedings be held in abeyance pending the filing of private
respondent's opposition to the request.
The two Departments seem to have misread the scope of their duties and
authority, one abdicating its powers and the other enlarging its commission.
The Department of Foreign Affairs, moreover, has, through the Solicitor
General, filed a manifestation that it is adopting the instant petition as its
own, indirectly conveying the message that if it were to evaluate the
extradition request, it would not allow private respondent to participate in the
process of evaluation.
Plainly then, the record cannot support the presumption of regularity that the
Department of Foreign Affairs thoroughly reviewed the extradition request
and supporting documents and that it arrived at a well-founded judgment
that the request and its annexed documents satisfy the requirements of law.
The Secretary of Justice, eminent as he is in the field of law, could not
privately review the papers all by himself. He had to officially constitute a
panel of attorneys. How then could the DFA Secretary or his undersecretary,
in less than one day, make the more authoritative determination?
The evaluation process, just like the extradition proceedings proper, belongs
to a class by itself. It is sui generis. It is not a criminal investigation, but it is
also erroneous to say that it is purely an exercise of ministerial functions. At
such stage, the executive authority has the power: (a) to make a technical
assessment of the completeness and sufficiency of the extradition papers;
(b) to outrightly deny the request if on its face and on the face of the
supporting documents the crimes indicated are not extraditable; and (c) to
make a determination whether or not the request is politically motivated, or
that the offense is a military one which is not punishable under non-military
penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph
[3], Article 3, RP-US Extradition Treaty). Hence, said process may be
characterized as an investigative or inquisitorial process in contrast to a
proceeding conducted in the exercise of an administrative body's quasi-
judicial power.
In administrative law, a quasi-judicial proceeding involves: (a) taking and
evaluation of evidence; (b) determining facts based upon the evidence
presented; and (c) rendering an order or decision supported by the facts
proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198,
citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is
also known as examining or investigatory power, is one or the determinative
powers of an administrative body which better enables it to exercise its
quasi-judicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26). This
power allows the administrative body to inspect the records and premises,
and investigate the activities, of persons or entities coming under its
jurisdiction (Ibid., p. 27), or to require disclosure of information by means or
accounts, records, reports, testimony of witnesses, production of
documents, or otherwise (De Leon, op. cit., p. 64).
The power of investigation consists in gathering, organizing, and analyzing
evidence, which is a useful aid or tool in an administrative agency's
performance of its rule-making or quasi-judicial functions. Notably,
investigation is indispensable to prosecution.
Page 7 of 17
In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had
occasion to rule on the functions of an investigatory body with the sole power
of investigation. It does not exercise judicial functions and its power is limited
to investigating the facts and making findings in respect thereto. The Court
laid down the test of determining whether an administrative body is
exercising judicial functions or merely investigatory functions: Adjudication
signifies the exercise of power and authority to adjudicate upon the rights
and obligations of the parties before it. Hence, if the only purpose for
investigation is to evaluate evidence submitted before it based on the facts
and circumstances presented to it, and if the agency is not authorized to
make a final pronouncement affecting the parties, then there is an absence
of judicial discretion and judgment.
The above description in Ruperto applies to an administrative body
authorized to evaluate extradition documents. The body has no power to
adjudicate in regard to the rights and obligations of both the Requesting
State and the prospective extraditee. Its only power is to determine whether
the papers comply with the requirements of the law and the treaty and,
therefore, sufficient to be the basis of an extradition petition. Such finding is
thus merely initial and not final. The body has no power to determine
whether or not the extradition should be effected. That is the role of the
court. The body's power is limited to an initial finding of whether or not the
extradition petition can be filed in court.
It is to be noted, however, that in contrast to ordinary investigations, the
evaluation procedure is characterized by certain peculiarities. Primarily, it
sets into motion the wheels of the extradition process. Ultimately, it may
result in the deprivation of liberty of the prospective extraditee. This
deprivation can be effected at two stages: First, the provisional arrest of the
prospective extraditee pending the submission of the request. This is so
because the Treaty provides that in case of urgency, a contracting party
may request the provisional arrest of the person sought pending
presentation of the request (Paragraph [1], Article 9, RP-US Extradition
Treaty), but he shall be automatically discharged after 60 days if no request
is submitted (Paragraph 4). Presidential Decree No. 1069 provides for a
shorter period of 20 days after which the arrested person could be
discharged (Section 20[d]). Logically, although the Extradition Law is silent
on this respect, the provisions only mean that once a request is forwarded
to the Requested State, the prospective extraditee may be continuously
detained, or if not, subsequently rearrested (Paragraph [5], Article 9, RP-US
Extradition Treaty), for he will only be discharged if no request is submitted.
Practically, the purpose of this detention is to prevent his possible flight from
the Requested State. Second, the temporary arrest of the prospective
extraditee during the pendency of the extradition petition in court (Section
6, Presidential Decree No. 1069).
Clearly, there is an impending threat to a prospective extraditee's liberty as
early as during the evaluation stage. It is not only an imagined threat to his
liberty, but a very imminent one.
Because of these possible consequences, we conclude that the evaluation
process is akin to an administrative agency conducting an investigative
proceeding, the consequences of which are essentially criminal since such
technical assessment sets off or commences the procedure for, and
ultimately, the deprivation of liberty of a prospective extraditee. As described
by petitioner himself, this is a "tool" for criminal law enforcement (p.
78, Rollo). In essence, therefore, the evaluation process partakes of the
nature of a criminal investigation. In a number of cases, we had occasion to
make available to a respondent in an administrative case or investigation
certain constitutional rights that are ordinarily available only in criminal
prosecutions. Further, as pointed out by Mr. Justice Mendoza during the oral
arguments, there are rights formerly available only at the trial stage that had
been advanced to an earlier stage in the proceedings, such as the right to
counsel and the right against self-incrimination (tsn, August 31, 1999, p.
135; Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S.
335; Miranda vs. Arizona, 384 U.S. 436).
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held
that the right against self-incrimination under Section 17, Article III of the
1987 Constitution which is ordinarily available only in criminal prosecutions,
extends to administrative proceedings which possess a criminal or penal
aspect, such as an administrative investigation of a licensed physician who
is charged with immorality, which could result in his loss of the privilege to
practice medicine if found guilty. The Court, citing the earlier case of Cabal
vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one's
Page 8 of 17
license as a medical practitioner, is an even greater deprivation than
forfeiture of property.
Cabal vs. Kapunan (supra) involved an administrative charge of
unexplained wealth against a respondent which was filed under Republic
Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since the
investigation may result in forfeiture of property, the administrative
proceedings are deemed criminal or penal, and such forfeiture partakes the
nature of a penalty. There is also the earlier case of Almeda,
Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing American
jurisprudence, laid down the test to determine whether a proceeding is civil
or criminal: If the proceeding is under a statute such that if an indictment is
presented the forfeiture can be included in the criminal case, such
proceeding is criminal in nature, although it may be civil in form; and where
it must be gathered from the statute that the action is meant to be criminal
in its nature, it cannot be considered as civil. If, however, the proceeding
does not involve the conviction of the wrongdoer for the offense charged,
the proceeding is civil in nature.
The cases mentioned above refer to an impending threat of deprivation of
one's property or property right. No less is this true, but even more so in the
case before us, involving as it does the possible deprivation of liberty, which,
based on the hierarchy of constitutionally protected rights, is placed second
only to life itself and enjoys precedence over property, for while forfeited
property can be returned or replaced, the time spent in incarceration is
irretrievable and beyond recompense.
By comparison, a favorable action in an extradition request exposes a
person to eventual extradition to a foreign country, thus saliently exhibiting
the criminal or penal aspect of the process. In this sense, the evaluation
procedure is akin to a preliminary investigation since both procedures may
have the same result — the arrest and imprisonment of the respondent or
the person charged. Similar to the evaluation stage of extradition
proceedings, a preliminary investigation, which may result in the filing of an
information against the respondent, can possibly lead to his arrest, and to
the deprivation of his liberty.
Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992])
(p. 8, petitioner's Memorandum) that the extradition treaty is neither a piece
of criminal legislation nor a criminal procedural statute is not well-
taken. Wright is not authority for petitioner's conclusion that his preliminary
processing is not akin to a preliminary investigation. The characterization of
a treaty in Wright was in reference to the applicability of the prohibition
against an ex post facto law. It had nothing to do with the denial of the right
to notice, information, and hearing.
As early as 1884, the United States Supreme Court ruled that "any legal
proceeding enforced by public authority, whether sanctioned by age or
custom, or newly devised in the discretion of the legislative power, in
furtherance of the general public good, which regards and preserved these
principles of liberty and justice, must be held to be due process of law"
(Hurtado vs. California, 110 U.S. 516). Compliance with due process
requirements cannot be deemed non-compliance with treaty commitments.
The United States and the Philippines share a mutual concern about the
suppression and punishment of crime in their respective jurisdictions. At the
same time, both States accord common due process protection to their
respective citizens.
The due process clauses in the American and Philippine Constitutions are
not only worded in exactly identical language and terminology, but more
importantly, they are alike in what their respective Supreme Courts have
expounded as the spirit with which the provisions are informed and
impressed, the elasticity in their interpretation, their dynamic and resilient
character which make them capable of meeting every modern problem, and
their having been designed from earliest time to the present to meet the
exigencies of an undefined and expanding future. The requirements of due
process are interpreted in both the United States and the Philippines as not
denying to the law the capacity for progress and improvement. Toward this
effect and in order to avoid the confines of a legal straitjacket, the courts
instead prefer to have the meaning of the due process clause "gradually
ascertained by the process of inclusion and exclusion in the course of the
decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78).
Capsulized, it refers to "the embodiment of the sporting idea of fair play"
(Ermita-Malate Hotel and Motel Owner's Association vs. City Mayor of
Page 9 of 17
Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of
justice which inhere in the very idea of free government (Holden vs. Hardy,
169 U.S. 366).
Due process is comprised of two components — substantive due process
which requires the intrinsic validity of the law in interfering with the rights of
the person to his life, liberty, or property, and procedural due process which
consists of the two basic rights of notice and hearing, as well as the
guarantee of being heard by an impartial and competent tribunal (Cruz,
Constitutional Law, 1993 Ed., pp. 102-106).
True to the mandate of the due process clause, the basic rights of notice
and hearing pervade not only in criminal and civil proceedings, but in
administrative proceedings as well. Non-observance of these rights will
invalidate the proceedings. Individuals are entitled to be notified of any
pending case affecting their interests, and upon notice, they may claim the
right to appear therein and present their side and to refute the position of
the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64).
In a preliminary investigation which is an administrative investigatory
proceeding, Section 3, Rule 112 of the Rules of Court guarantees the
respondent's basic due process rights, granting him the right to be furnished
a copy of the complaint, the affidavits, and other supporting documents, and
the right to submit counter-affidavits and other supporting documents within
ten days from receipt thereof. Moreover, the respondent shall have the right
to examine all other evidence submitted by the complainant.
These twin rights may, however, be considered dispensable in certain
instances, such as:
1. In proceeding where there is an urgent need for immediate
action, like the summary abatement of a nuisance per se (Article
704, Civil Code), the preventive suspension of a public servant
facing administrative charges (Section 63, Local Government Code,
B.P. Blg. 337), the padlocking of filthy restaurants or theaters
showing obscene movies or like establishments which are
immediate threats to public health and decency, and the
cancellation of a passport of a person sought for criminal
prosecution;
2. Where there is tentativeness of administrative action, that is,
where the respondent is not precluded from enjoying the right to
notice and hearing at a later time without prejudice to the person
affected, such as the summary distraint and levy of the property of
a delinquent taxpayer, and the replacement of a temporary
appointee; and
3. Where the twin rights have previously been offered but the right
to exercise them had not been claimed.
Applying the above principles to the case at bar, the query may be asked:
Does the evaluation stage of the extradition proceedings fall under any of
the described situations mentioned above?
Let us take a brief look at the nature of American extradition proceedings
which are quite noteworthy considering that the subject treaty involves the
U.S. Government.
American jurisprudence distinguishes between interstate rendition or
extradition which is based on the Extradition Clause in the U.S. Constitution
(Art. IV, §2 cl 2), and international extradition proceedings. In interstate
rendition or extradition, the governor of the asylum state has the duty to
deliver the fugitive to the demanding state. The Extradition Clause and the
implementing statute are given a liberal construction to carry out their
manifest purpose, which is to effect the return as swiftly as possible of
persons for trial to the state in which they have been charged with crime
(31A Am Jur 2d 754-755). In order to achieve extradition of an alleged
fugitive, the requisition papers or the demand must be in proper form, and
all the elements or jurisdictional facts essential to the extradition must
appear on the face of the papers, such as the allegation that the person
demanded was in the demanding state at the time the offense charged was
committed, and that the person demanded is charged with the commission
of the crime or that prosecution has been begun in the demanding state
before some court or magistrate (35 C.J.S. 406-407). The extradition
documents are then filed with the governor of the asylum state, and must
Page 10 of 17
contain such papers and documents prescribed by statute, which essentially
include a copy of the instrument charging the person demanded with a
crime, such as an indictment or an affidavit made before a magistrate.
Statutory requirements with respect to said charging instrument or papers
are mandatory since said papers are necessary in order to confer
jurisdiction on the government of the asylum state to effect extradition (35
C.J.S. 408-410). A statutory provision requiring duplicate copies of the
indictment, information, affidavit, or judgment of conviction or sentence and
other instruments accompanying the demand or requisitions be furnished
and delivered to the fugitive or his attorney is directory. However, the right
being such a basic one has been held to be a right mandatory on
demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr.
407 and Ex parte Tucker, Cr., 324, S.W.2d 853).
In international proceedings, extradition treaties generally provide for the
presentation to the executive authority of the Requested State of a
requisition or demand for the return of the alleged offender, and the
designation of the particular officer having authority to act in behalf of the
demanding nation (31A Am Jur 2d 815).
In petitioner's memorandum filed on September 15, 1999, he attached
thereto a letter dated September 13, 1999 from the Criminal Division of the
U.S. Department of Justice, summarizing the U.S. extradition procedures
and principles, which are basically governed by a combination of treaties
(with special reference to the RP-US Extradition Treaty), federal statutes,
and judicial decisions, to wit:
1. All requests for extradition are transmitted through the diplomatic
channel. In urgent cases, requests for the provincial arrest of an
individual may be made directly by the Philippine Department of
Justice to the U.S. Department of Justice, and vice-versa. In the
event of a provisional arrest, a formal request for extradition is
transmitted subsequently through the diplomatic channel.
2. The Department of State forwards the incoming Philippine
extradition request to the Department of Justice. Before doing so,
the Department of State prepares a declaration confirming that a
formal request has been made, that the treaty is in full force and
effect, that under Article 17 thereof the parties provide reciprocal
legal representation in extradition proceedings, that the offenses
are covered as extraditable offenses under Article 2 thereof, and
that the documents have been authenticated in accordance with the
federal statute that ensures admissibility at any subsequent
extradition hearing.
3. A judge or magistrate judge is authorized to issue a warrant for
the arrest of the prospective extraditee (18 U.S.C. §3184). Said
judge or magistrate is authorized to hold a hearing to consider the
evidence offered in support of the extradition request (Ibid.)
4. At the hearing, the court must determine whether the person
arrested is extraditable to the foreign country. The court must also
determine that (a) it has jurisdiction over the defendant and
jurisdiction to conduct the hearing; (b) the defendant is being sought
for offenses for which the applicable treaty permits extradition; and
(c) there is probable cause to believe that the defendant is the
person sought and that he committed the offenses charged (Ibid.)
5. The judge or magistrate judge is vested with jurisdiction to certify
extraditability after having received a "complaint made under oath,
charging any person found within his jurisdiction" with having
committed any of the crimes provided for by the governing treaty in
the country requesting extradition (Ibid.) [In this regard, it is noted
that a long line of American decisions pronounce that international
extradition proceedings partake of the character of a preliminary
examination before a committing magistrate, rather than a trial of
the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).]
6. If the court decides that the elements necessary for extradition
are present, it incorporates its determinations in factual findings and
conclusions of law and certifies the person's extraditability. The
court then forwards this certification of extraditability to the
Department of State for disposition by the Secretary of State. The
ultimate decision whether to surrender an individual rests with the
Secretary of State (18 U.S.C. §3186).
Page 11 of 17
 7. The subject of an extradition request may not litigate questions
concerning the motives of the requesting government in seeking his
extradition. However, a person facing extradition may present
whatever information he deems relevant to the Secretary of State,
who makes the final determination whether to surrender an
individual to the foreign government concerned.
From the foregoing, it may be observed that in the United States, extradition
begins and ends with one entity — the Department of State — which has
the power to evaluate the request and the extradition documents in the
beginning, and, in the person of the Secretary of State, the power to act or
not to act on the court's determination of extraditability. In the Philippine
setting, it is the Department of Foreign Affairs which should make the initial
evaluation of the request, and having satisfied itself on the points earlier
mentioned (see pp. 10-12), then forwards the request to the Department of
Justice for the preparation and filing of the petition for extradition. Sadly,
however, the Department of Foreign Affairs, in the instant case, perfunctorily
turned over the request to the Department of Justice which has taken over
the task of evaluating the request as well as thereafter, if so warranted,
preparing, filing, and prosecuting the petition for extradition.
Private respondent asks what prejudice will be caused to the U.S.
Government should the person sought to be extradited be given due
process rights by the Philippines in the evaluation stage. He emphasizes
that petitioner's primary concern is the possible delay in the evaluation
process.
We agree with private respondent's citation of an American Supreme Court
ruling:
The establishment of prompt efficacious procedures to achieve
legitimate state ends is a proper state interest worthy of cognizance
in constitutional adjudication. But the Constitution recognizes
higher values than speed and efficiency. Indeed, one might fairly
say of the Bill of Rights in general, and the Due Process Clause, in
particular, that they were designed to protect the fragile values of a
vulnerable citizenry from the overbearing concern for efficiency and
efficacy that may characterize praiseworthy government officials no
less, and perhaps more, than mediocre ones.
(Stanley vs. Illinois, 404 U.S. 645, 656)
The United States, no doubt, shares the same interest as the Philippine
Government that no right — that of liberty — secured not only by the Bills of
Rights of the Philippines Constitution but of the United States as well, is
sacrificed at the altar of expediency.
(pp. 40-41, Private Respondent's Memorandum.)
In the Philippine context, this Court's ruling is invoked:
One of the basic principles of the democratic system is that where
the rights of the individual are concerned, the end does not justify
the means. It is not enough that there be a valid objective; it is also
necessary that the means employed to pursue it be in keeping with
the Constitution. Mere expediency will not excuse constitutional
shortcuts. There is no question that not even the strongest moral
conviction or the most urgent public need, subject only to a few
notable exceptions, will excuse the bypassing of an individual's
rights. It is no exaggeration to say that a person invoking a right
guaranteed under Article III of the Constitution is a majority of one
even as against the rest of the nation who would deny him that right
(Association of Small Landowners in the Philippines, Inc. vs.
Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]).
There can be no dispute over petitioner's argument that extradition is a tool
of criminal law enforcement. To be effective, requests for extradition or the
surrender of accused or convicted persons must be processed
expeditiously. Nevertheless, accelerated or fast-tracked proceedings and
adherence to fair procedures are, however, not always incompatible. They
do not always clash in discord. Summary does not mean precipitous haste.
It does not carry a disregard of the basic principles inherent in "ordered
liberty."
Page 12 of 17
Is there really an urgent need for immediate action at the evaluation stage?
At that point, there is no extraditee yet in the strict sense of the word.
Extradition may or may not occur. In interstate extradition, the governor of
the asylum state may not, in the absence of mandatory statute, be
compelled to act favorably (37 C.J.S. 387) since after a close evaluation of
the extradition papers, he may hold that federal and statutory requirements,
which are significantly jurisdictional, have not been met (31 Am Jur 2d 819).
Similarly, under an extradition treaty, the executive authority of the
requested state has the power to deny the behest from the requesting state.
Accordingly, if after a careful examination of the extradition documents the
Secretary of Foreign Affairs finds that the request fails to meet the
requirements of the law and the treaty, he shall not forward the request to
the Department of Justice for the filing of the extradition petition since non-
compliance with the aforesaid requirements will not vest our government
with jurisdiction to effect the extradition.
In this light, it should be observed that the Department of Justice exerted
notable efforts in assuring compliance with the requirements of the law and
the treaty since it even informed the U.S. Government of certain problems
in the extradition papers (such as those that are in Spanish and without the
official English translation, and those that are not properly authenticated). In
fact, petitioner even admits that consultation meetings are still supposed to
take place between the lawyers in his Department and those from the U.S.
Justice Department. With the meticulous nature of the evaluation, which
cannot just be completed in an abbreviated period of time due to its
intricacies, how then can we say that it is a proceeding that urgently
necessitates immediate and prompt action where notice and hearing can be
dispensed with?
Worthy of inquiry is the issue of whether or not there is tentativeness of
administrative action. Is private respondent precluded from enjoying the
right to notice and hearing at a later time without prejudice to him? Here lies
the peculiarity and deviant characteristic of the evaluation procedure. On
one hand there is yet no extraditee, but ironically on the other, it results in
an administrative if adverse to the person involved, may cause his
immediate incarceration. The grant of the request shall lead to the filing of
the extradition petition in court. The "accused" (as Section 2[c] of
Presidential Decree No. 1069 calls him), faces the threat of arrest, not only
after the extradition petition is filed in court, but even during the evaluation
proceeding itself by virtue of the provisional arrest allowed under the treaty
and the implementing law. The prejudice to the "accused" is thus blatant
and manifest.
Plainly, the notice and hearing requirements of administrative due process
cannot be dispensed with and shelved aside.
Apart from the due process clause of the Constitution, private respondent
likewise invokes Section 7 of Article III which reads:
Sec. 7. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.
The above provision guarantees political rights which are available to
citizens of the Philippines, namely: (1) the right to information on matters of
public concern, and (2) the corollary right of access to official records
documents. The general right guaranteed by said provision is the right to
information on matters of public concern. In its implementation, the right of
access to official records is likewise conferred. These cognate or related
rights are "subject to limitations as may be provided by law" (Bernas, The
1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the
premise that ultimately it is an informed and critical public opinion which
alone can protect the values of democratic government (Ibid.).
Petitioner argues that the matters covered by private respondent's letter-
request dated July 1, 1999 do not fall under the guarantee of the foregoing
provision since the matters contained in the documents requested are not
of public concern. On the other hand, private respondent argues that the
distinction between matters vested with public interest and matters which
are of purely private interest only becomes material when a third person,
who is not directly affected by the matters requested, invokes the right to
information. However, if the person invoking the right is the one directly
affected thereby, his right to information becomes absolute.
Page 13 of 17
The concept of matters of public concerns escapes exact definition. Strictly
speaking, every act of a public officer in the conduct of the governmental
process is a matter of public concern (Bernas, The 1987 Constitution of the
Republic of the Philippines, 1996 ed., p. 336). This concept embraces a
broad spectrum of subjects which the public may want to know, either
because these directly affect their lives or simply because such matters
arouse the interest of an ordinary citizen (Legaspi v. Civil Service
Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the
people and any citizen has "standing".
When the individual himself is involved in official government action
because said action has a direct bearing on his life, and may either cause
him some kind of deprivation or injury, he actually invokes the basic right to
be notified under Section 1 of the Bill of Rights and not exactly the right to
information on matters of public concern. As to an accused in a criminal
proceeding, he invokes Section 14, particularly the right to be informed of
the nature and cause of the accusation against him.
The right to information is implemented by the right of access to information
within the control of the government (Bernas, The 1987 Constitution of the
Republic of the Philippines, 1996 ed., p. 337). Such information may be
contained in official records, and in documents and papers pertaining to
official acts, transactions, or decisions.
In the case at bar, the papers requested by private respondent pertain to
official government action from the U.S. Government. No official action from
our country has yet been taken. Moreover, the papers have some relation
to matters of foreign relations with the U.S. Government. Consequently, if a
third party invokes this constitutional provision, stating that the extradition
papers are matters of public concern since they may result in the extradition
of a Filipino, we are afraid that the balance must be tilted, at such particular
time, in favor of the interests necessary for the proper functioning of the
government. During the evaluation procedure, no official governmental
action of our own government has as yet been done; hence the invocation
of the right is premature. Later, and in contrast, records of the extradition
hearing would already fall under matters of public concern, because our
government by then shall have already made an official decision to grant
the extradition request. The extradition of a fellow Filipino would be
forthcoming.
We now pass upon the final issue pertinent to the subject matter of the
instant controversy: Would private respondent's entitlement to notice and
hearing during the evaluation stage of the proceedings constitute a breach
of the legal duties of the Philippine Government under the RP-Extradition
Treaty? Assuming the answer is in the affirmative, is there really a conflict
between the treaty and the due process clause in the Constitution?
First and foremost, let us categorically say that this is not the proper time to
pass upon the constitutionality of the provisions of the RP-US Extradition
Treaty nor the Extradition Law implementing the same. We limit ourselves
only to the effect of the grant of the basic rights of notice and hearing to
private respondent on foreign relations.
The rule of pacta sunt servanda, one of the oldest and most fundamental
maxims of international law, requires the parties to a treaty to keep their
agreement therein in good faith. The observance of our country's legal
duties under a treaty is also compelled by Section 2, Article II of the
Constitution which provides that "[t]he Philippines renounces war as an
instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land, and adheres to the policy of
peace, equality, justice, freedom, cooperation and amity with nations."
Under the doctrine of incorporation, rules of international law form part of
the law of the and land no further legislative action is needed to make such
rules applicable in the domestic sphere (Salonga & Yap, Public International
Law, 1992 ed., p. 12).
The doctrine of incorporation is applied whenever municipal tribunals (or
local courts) are confronted with situations in which there appears to be a
conflict between a rule of international law and the provisions of the
constitution or statute of the local state. Efforts should first be exerted to
harmonize them, so as to give effect to both since it is to be presumed that
municipal law was enacted with proper regard for the generally accepted
principles of international law in observance of the observance of the
Incorporation Clause in the above-cited constitutional provision (Cruz,
Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the
Page 14 of 17
conflict is irreconcilable and a choice has to be made between a rule of
international law and municipal law, jurisprudence dictates that municipal
law should be upheld by the municipal courts (Ichong vs. Hernandez, 101
Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re:
Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of
municipal law and are accordingly bound by it in all circumstances (Salonga
& Yap, op. cit., p. 13). The fact that international law has been made part of
the law of the land does not pertain to or imply the primacy of international
law over national or municipal law in the municipal sphere. The doctrine of
incorporation, as applied in most countries, decrees that rules of
international law are given equal standing with, but are not superior to,
national legislative enactments. Accordingly, the principle lex posterior
derogat priori takes effect — a treaty may repeal a statute and a statute may
repeal a treaty. In states where the constitution is the highest law of the land,
such as the Republic of the Philippines, both statutes and treaties may be
invalidated if they are in conflict with the constitution (Ibid.).
In the case at bar, is there really a conflict between international law and
municipal or national law? En contrario, these two components of the law of
the land are not pined against each other. There is no occasion to choose
which of the two should be upheld. Instead, we see a void in the provisions
of the RP-US Extradition Treaty, as implemented by Presidential Decree
No. 1069, as regards the basic due process rights of a prospective
extraditee at the evaluation stage of extradition proceedings. From the
procedures earlier abstracted, after the filing of the extradition petition and
during the judicial determination of the propriety of extradition, the rights of
notice and hearing are clearly granted to the prospective extraditee.
However, prior thereto, the law is silent as to these rights. Reference to the
U.S. extradition procedures also manifests this silence.
Petitioner interprets this silence as unavailability of these rights.
Consequently, he describes the evaluation procedure as an "ex
parte technical assessment" of the sufficiency of the extradition request and
the supporting documents.
We disagree.
In the absence of a law or principle of law, we must apply the rules of fair
play. An application of the basic twin due process rights of notice and
hearing will not go against the treaty or the implementing law. Neither the
Treaty nor the Extradition Law precludes these rights from a prospective
extraditee. Similarly, American jurisprudence and procedures on extradition
pose no proscription. In fact, in interstate extradition proceedings as
explained above, the prospective extraditee may even request for copies of
the extradition documents from the governor of the asylum state, and if he
does, his right to be supplied the same becomes a demandable right (35
C.J.S. 410).
Petitioner contends that the United States requested the Philippine
Government to prevent unauthorized disclosure of confidential information.
Hence, the secrecy surrounding the action of the Department of Justice
Panel of Attorneys. The confidentiality argument is, however, overturned by
petitioner's revelation that everything it refuses to make available at this
stage would be obtainable during trial. The Department of Justice states that
the U.S. District Court concerned has authorized the disclosure of certain
grand jury information. If the information is truly confidential, the veil of
secrecy cannot be lifted at any stage of the extradition proceedings. Not
even during trial.
A libertarian approach is thus called for under the premises.
One will search in vain the RP-US Extradition Treaty, the Extradition Law,
as well as American jurisprudence and procedures on extradition, for any
prohibition against the conferment of the two basic due process rights of
notice and hearing during the evaluation stage of the extradition
proceedings. We have to consider similar situations in jurisprudence for an
application by analogy.
Earlier, we stated that there are similarities between the evaluation process
and a preliminary investigation since both procedures may result in the
arrest of the respondent or the prospective extraditee. In the evaluation
process, a provisional arrest is even allowed by the Treaty and the
Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential
Decree No. 1069). Following petitioner's theory, because there is no
provision of its availability, does this imply that for a period of time, the
Page 15 of 17
privilege of the writ of habeas corpus is suspended, despite Section 15,
Article III of the Constitution which states that "[t]he privilege of the writ
or habeas corpus shall not be suspended except in cases of invasion or
rebellion when the public safety requires it"? Petitioner's theory would also
infer that bail is not available during the arrest of the prospective extraditee
when the extradition petition has already been filed in court since
Presidential Decree No. 1069 does not provide therefor, notwithstanding
Section 13, Article III of the Constitution which provides that "[a]ll persons,
except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided by law. The
right to bail shall not be impaired even when the privilege of the writ
of habeas corpus is suspended. . ." Can petitioner validly argue that since
these contraventions are by virtue of a treaty and hence affecting foreign
relations, the aforestated guarantees in the Bill of Rights could thus be
subservient thereto?
The basic principles of administrative law instruct us that "the essence of
due process in administrative proceeding is an opportunity to explain one's
side or an opportunity to seek reconsideration of the actions or ruling
complained of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC,
273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc.
vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA
602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence,
procedural due process refers to the method or manner by which the law is
enforced (Corona vs. United Harbor Pilots Association of the Phils., 283
SCRA 31 [1997]). This Court will not tolerate the least disregard of
constitutional guarantees in the enforcement of a law or treaty. Petitioner's
fears that the Requesting State may have valid objections to the Requested
State's non-performance of its commitments under the Extradition Treaty
are insubstantial and should not be given paramount consideration.
How then do we implement the RP-US Extradition Treaty? Do we limit
ourselves to the four corners of Presidential Decree No. 1069?
Of analogous application are the rulings in Government Service Insurance
System vs. Court of Appeals (201 SCRA 661 [1991]) and Go vs. National
Police Commission (271 SCRA 447 [1997]) where we ruled that in summary
proceedings under Presidential Decree No. 807 (Providing for the
Organization of the Civil Service Commission in Accordance with Provisions
of the Constitution, Prescribing its Powers and Functions and for Other
Purposes), and Presidential Decree No. 971 (Providing Legal Assistance for
Members of the Integrated National Police who may be charged for Service-
Connected Offenses and Improving the Disciplinary System in the
Integrated National Police, Appropriating Funds Therefor and for other
purposes), as amended by Presidential Decree No. 1707, although
summary dismissals may be effected without the necessity of a formal
investigation, the minimum requirements of due process still operate. As
held in GSIS vs. Court of Appeals:
. . . [I]t is clear to us that what the opening sentence of Section 40
is saying is that an employee may be removed or dismissed even
without formal investigation, in certain instances. It is equally clear
to us that an employee must be informed of the charges preferred
against him, and that the normal way by which the employee is so
informed is by furnishing him with a copy of the charges against
him. This is a basic procedural requirement that a statute cannot
dispense with and still remain consistent with the constitutional
provision on due process. The second minimum requirement is that
the employee charged with some misfeasance or malfeasance
must have a reasonable opportunity to present his side of the
matter, that is to say, his defenses against the charges levelled
against him and to present evidence in support of his defenses. . . .
(at p. 671)
Said summary dismissal proceedings are also non-litigious in nature, yet we
upheld the due process rights of the respondent.
In the case at bar, private respondent does not only face a clear and present
danger of loss of property or employment, but of liberty itself, which may
eventually lead to his forcible banishment to a foreign land. The
convergence of petitioner's favorable action on the extradition request and
the deprivation of private respondent's liberty is easily comprehensible.
Page 16 of 17
We have ruled time and again that this Court's equity jurisdiction, which is
aptly described as "justice outside legality," may be availed of only in the
absence of, and never against, statutory law or judicial pronouncements
(Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-
Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue
in the case at bar does not even call for "justice outside legality," since
private respondent's due process rights, although not guaranteed by statute
or by treaty, are protected by constitutional guarantees. We would not be
true to the organic law of the land if we choose strict construction over
guarantees against the deprivation of liberty. That would not be in keeping
with the principles of democracy on which our Constitution is premised.

Verily, as one traverses treacherous waters of conflicting and opposing

currents of liberty and government authority, he must ever hold the oar of
freedom in the stronger arm, lest an errant and wayward course be laid.

WHEREFORE, in view of the foregoing premises, the instant petition is

hereby DISMISSED for lack of merit. Petitioner is ordered to furnish private
respondent copies of the extradition request and its supporting papers, and
to grant him a reasonable period within which to file his comment with
supporting evidence. The incidents in Civil Case No. 99-94684 having been
rendered moot and academic by this decision, the same is hereby ordered
dismissed.

SO ORDERED.

Page 17 of 17
 Republic of the Philippines 2. That the borrowers were desirous to borrow the sum of
SUPREME COURT ONE HUNDRED THOUSAND (P100,000.00) PESOS from
Manila the LENDER, for a period of two (2) years, counted from
March 1, 1987, with an interest of EIGHTEEN (18%)
FIRST DIVISION PERCENT per annum, and to guaranty the payment
thereof, they are putting as a collateral SEVENTY (70)
SQUARE METERS portion, inclusive of the apartment
therein, of the aforestated parcel of land, however, in the
event the borrowers fail to pay, the lender has the option to
G.R. No. 126800 November 29, 1999 buy or purchase the collateral for a total consideration of
TWO HUNDRED THOUSAND (P200,000.00) PESOS,
NATALIA P. BUSTAMANTE, petitioner, inclusive of the borrowed amount and interest therein;
vs.
SPOUSES RODITO F. ROSEL and NORMA A. ROSEL, respondents. 3. That the lender do hereby manifest her agreement and
conformity to the preceding paragraph, while the borrowers
RESOLUTION do hereby confess receipt of the borrowed amount. 4

When the loan was about to mature on March 1, 1989, respondents

PARDO, J.:
The case before the Court is a petition for review on certiorari 1 to annul the
decision of the Court of Appeals, 2 reversing and setting aside the decision
of the Regional Trial Court, 3 Quezon City, Branch 84, in an action for
specific performance with consignation.
On March 8, 1987, at Quezon City, Norma Rosel entered into a loan
agreement with petitioner Natalia Bustamante and her late husband Ismael
C. Bustamante, under the following terms and conditions:
1. That the borrowers are the registered owners of a parcel
of land, evidenced by TRANSFER CERTIFICATE OF
TITLE No. 80667, containing an area of FOUR HUNDRED
TWENTY THREE (423) SQUARE Meters, more or less,
situated along Congressional Avenue.
proposed to buy at the pre-set price of P200,000.00, the seventy (70) square
meters parcel of land covered by TCT No. 80667, given as collateral to
guarantee payment of the loan. Petitioner, however, refused to sell and
requested for extension of time to pay the loan and offered to sell to
respondents another residential lot located at Road 20, Project 8, Quezon
City, with the principal loan plus interest to be used as down payment.
Respondents refused to extend the payment of the loan and to accept the
lot in Road 20 as it was occupied by squatters and petitioner and her
husband were not the owners thereof but were mere land developers
entitled to subdivision shares or commission if and when they developed at
least one half of the subdivision area. 5
Hence, on March 1, 1989, petitioner tendered payment of the loan to
respondents which the latter refused to accept, insisting on petitioner's
signing a prepared deed of absolute sale of the collateral.
On February 28, 1990, respondents filed with the Regional Trial Court,
Quezon City, Branch 84, a complaint for specific performance with
consignation against petitioner and her spouse. 6

Page 1 of 4
Nevertheless, on March 4, 1990, respondents sent a demand letter asking
petitioner to sell the collateral pursuant to the option to buy embodied in the
loan agreement.
On the other hand, on March 5, 1990, petitioner filed in the Regional Trial
Court, Quezon City a petition for consignation, and deposited the amount of
P153,000.00 with the City Treasurer of Quezon City on August 10, 1990. 7
When petitioner refused to sell the collateral and barangay conciliation
failed, respondents consigned the amount of P47,500.00 with the trial
court. 8 In arriving at the amount deposited, respondents considered the
principal loan of P100,000.00 and 18% interest per annum thereon, which
amounted to P52,500.00. 9 The principal loan and the interest taken
together amounted to P152,500.00, leaving a balance of P 47,500.00. 10
After due trial, on November 10, 1992, the trial court rendered decision
holding:
WHEREFORE, premises considered, judgment is hereby
rendered as follows:
1. Denying the plaintiff's prayer for the defendants'
execution of the Deed of Sale to Convey the collateral in
plaintiffs' favor;
2. Ordering the defendants to pay the loan of P100,000.00
with interest thereon at 18% per annum commencing on
March 2, 1989, up to and until August 10, 1990, when
defendants deposited the amount with the Office of the City
Treasurer under Official Receipt No. 0116548 (Exhibit "2");
and
3. To pay Attorney's Fees in the amount of P5,000.00, plus
costs of suit.
SO ORDERED.
Quezon City, Philippines, November 10, 1992.
TEODORO P. REGINO
Judge 11
On November 16, 1992, respondents appealed from the decision to the
Court of Appeals. 12 On July 8, 1996, the Court of Appeals rendered
decision reversing the ruling of the Regional Trial Court. The dispositive
portion of the Court of Appeals' decision reads:
IN VIEW OF THE FOREGOING, the judgment appeal (sic)
from is REVERSED and SET ASIDE and a new one
entered in favor of the plaintiffs ordering the defendants to
accept the amount of P47,000.00 deposited with the Clerk
of Court of Regional Trial Court of Quezon City under
Official Receipt No. 0719847, and for defendants to
execute the necessary Deed of Sale in favor of the plaintiffs
over the 70 SQUARE METER portion and the apartment
standing thereon being occupied by the plaintiffs and
covered by TCT No. 80667 within fifteen (15) days from
finality hereof. Defendants, in turn, are allowed to withdraw
the amount of P153,000.00 deposited by them under
Official Receipt No. 0116548 of the City Treasurer's Office
of Quezon City. All other claims and counterclaims
are DISMISSED, for lack of sufficient basis. No costs.
SO ORDERED. 13
Hence, this petition. 14
On January 20, 1997, we required respondents to comment on the petition
within ten (10) days from notice. 15 On February 27, 1997, respondents filed
their comment. 16
On February 9, 1998, we resolved to deny the petition on the ground that
there was no reversible error on the part of respondent court in ordering the
Page 2 of 4
execution of the necessary deed of sale in conformity the with the parties'
stipulated agreement. The contract is the law between the parties thereof
(Syjuco v. Court of Appeals, 172 SCRA 111 118, citing Phil. American
General Insurance v. Mutuc, 61 SCRA 22; Herrera v. Petrophil Corporation,
146 SCRA 360). 17
On March 17, 1998, petitioner filed with this Court a motion for
reconsideration of the denial alleging that the real intention of the parties to
the loan was to put up the collateral as guarantee similar to an equitable
mortgage according to Article 1602 of the Civil Code. 18
On April 21, 1998, respondents filed an opposition to petitioner's motion for
reconsideration. They contend that the agreement between the parties was
not a sale with right of re-purchase, but a loan with interest at 18% per
annum for a period of two years and if petitioner fails to pay, the respondent
was given the right to purchase the property or apartment for P200,000.00,
which is not contrary to law, morals, good customs, public order or public
policy. 19
Upon due consideration of petitioner's motion, we now resolve to grant the
motion for reconsideration.
The questions presented are whether petitioner failed to pay the loan at its
maturity date and whether the stipulation in the loan contract was valid and
enforceable.
We rule that petitioner did not fail to pay the loan.
The loan was due for payment on March 1, 1989. On said date, petitioner
tendered payment to settle the loan which respondents refused to accept,
insisting that petitioner sell to them the collateral of the loan.
When respondents refused to accept payment, petitioner consigned the
amount with the trial court.
We note the eagerness of respondents to acquire the property given as
collateral to guarantee the loan. The sale of the collateral is an obligation
with a suspensive condition. 20 It is dependent upon the happening of an
event, without which the obligation to sell does not arise. Since the event
did not occur, respondents do not have the right to demand fulfillment of
petitioner's obligation, especially where the same would not only be
disadvantageous to petitioner but would also unjustly enrich respondents
considering the inadequate consideration (P200,000.00) for a 70 square
meter property situated at Congressional Avenue, Quezon City.
Respondents argue that contracts have the force of law between the
contracting parties and must be complied with in good faith. 21 There are,
however, certain exceptions to the rule, specifically Article 1306 of the Civil
Code, which provides:
Art. 1306. The contracting parties may establish such
stipulations, clauses, terms and conditions as they may
deem convenient, provided they are not contrary to law,
morals, good customs, public order, or public policy.
A scrutiny of the stipulation of the parties reveals a subtle intention of the
creditor to acquire the property given as security for the loan. This is
embraced in the concept of pactum commissorium, which is proscribed by
law. 22
The elements of pactum commissorium are as follows: (1) there should be
a property mortgaged by way of security for the payment of the principal
obligation, and (2) there should be a stipulation for automatic appropriation
by the creditor of the thing mortgaged in case of non-payment of the
principal obligation within the stipulated period. 23
In Nakpil vs. Intermediate Appellate Court, 24 we said:
The arrangement entered into between the parties,
whereby Pulong Maulap was to be "considered sold to him
(respondent) . . . in case petitioner fails to reimburse
Valdes, must then be construed as tantamount to pactum
commissorium which is expressly prohibited by Art. 2088 of
the Civil Code. For, there was to be automatic appropriation
Page 3 of 4
 of the property by Valdes in the event of failure of petitioner
to pay the value of the advances. Thus, contrary to
respondent's manifestation, all the elements of a pactum
commissorium were present: there was a creditor-debtor
relationship between the parties; the property was used as
security for the loan; and there was automatic appropriation
by respondent of Pulong Maulap in case of default of
petitioner.

A significant task in contract interpretation is the ascertainment of the

intention of the parties and looking into the words used by the parties to
project that intention. In this case, the intent to appropriate the property
given as collateral in favor of the creditor appears to be evident, for the
debtor is obliged to dispose of the collateral at the pre-agreed consideration
amounting to practically the same amount as the loan. In effect, the creditor
acquires the collateral in the event of non payment of the loan. This is within
the concept of pactum commissorium. Such stipulation is void. 25

All persons in need of money are liable to enter into contractual relationships
whatever the condition if only to alleviate their financial burden albeit
temporarily. Hence, courts are duty bound to exercise caution in the
interpretation and resolution of contracts lest the lenders devour the
borrowers like vultures do with their prey.

WHEREFORE, we GRANT petitioner's motion for reconsideration and SET

ASIDE the Court's resolution of February 9, 1998. We REVERSE the
decision of the Court of Appeals in CA-G.R. CV No. 40193. In lieu thereof,
we hereby DISMISS the complaint in Civil Case No. Q-90-4813.

No costs.

SO ORDERED.

Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.

Page 4 of 4
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-58184 October 30, 1981
FREE TELEPHONE WORKERS UNION, petitioner,
vs.
THE HONORABLE MINISTER OF LABOR AND EMPLOYMENT,
THE NATIONAL LABOR RELATIONS COMMISSION, and THE
PHILIPPINE LONG DISTANCE TELEPHONE
COMPANY, respondents.
FERNANDO, C.J.:
The constitutionality of the amendment to the Article of the Labor Code
regarding strikes "affecting the national interest" 1 is assailed in this
petition which partakes of the nature of a prohibition proceeding filed by
the Free Telephone Workers Union. As amended, the Article now reads:
"In labor disputes causing or likely to cause strikes or lockouts adversely
affecting the national interest, such as may occur in but not limited to
public utilities, companies engaged in the generation or distribution of
energy, banks, hospitals, and those within export processing zones, the
Minister of Labor and Employment may assume jurisdiction over the
dispute and decide it or certify the same to the Commission for
compulsory arbitration. Such assumption or certification shall have the
effect of automatically enjoining the intended or impending strike or
lockout. If one has already taken place at the time of assumption or
certification, all striking or locked out employees shall immediately return
to work and the employers shall immediately resume operations and
readmit all workers under the same terms and conditions prevailing
before the strike or lockout. The Minister may seek the assistance of law
enforcement agencies to ensure compliance with this provision as well
as with such orders as he may issue to enforce the same." 2 It is the
submission of petitioner labor union that "Batas Pambansa Blg. 130 in
so far as it amends article 264 of the Labor Code delegating to the
Honorable Minister of Labor and Employment the power and discretion
to assume jurisdiction and/or certify strikes for compulsory arbitration to
the National Labor Relations Commission, and in effect make or unmake
the law on free collective bargaining, is an undue delegation of legislative
powers. 3 There is likewise the assertion that such conferment of
authority "may also ran (sic) contrary to the assurance of the State to the
workers' right to self-organization and collective bargaining. 4
On the CRUCIAL ISSUE PRESENTED; THE Court holds that petitioner
was not able to make out a case of an undue delegation of legislative
power. There could be, however, an unconstitutional application. For
while the Constitution allows compulsory arbitration, it must be stressed
that the exercise of such competence cannot ignore the basic
fundamental principle and state policy that the state should afford
protection to labor. 5 Whenever, therefore, it is resorted to in labor
disputes causing or likely to cause strikes or lockouts affecting national
interest, the State still is required to "assure the rights of workers to self-
organization, collective bargaining, security of tenure, and just and
humane conditions of work. 6 At this stage of the litigation, however, in
the absence of factual determination by the Ministry of Labor and the
National Labor Relations Commission, this Court is not in a position to
rule on whether or not there is an unconstitutional application. There was
not even a categorical assertion to that effect by petitioner's counsel
which was indicative of the care in his choice of words. He only assumed
that the conferment of such authority may run counter to the right of the
workers to self-organization and collective bargaining. The petition then
cannot prosper.
The facts alleged in the petition relevant for the purpose of determining
whether or not there is an undue delegation of legislative power do not
sustain the claim of petitioner union. On September 14, 1981, there was
a notice of strike with the Ministry of Labor for unfair labor practices
stating the following grounds " 1) Unilateral and arbitrary implementation
Page 1 of 6
of a Code of Conduct, a copy of which is attached, to the detriment of
the interest of our members; 2) Illegal terminations and suspensions of
our officers and members as a result of the implementation of said Code
of Conduct; and 3) Unconfirmation (sic) of call sick leaves and its
automatic treatment as Absence Without Official Leave of Absence
(AWOL) with corresponding suspensions, in violation of our Collective
Bargaining Agreement." 7 After which came, on September 15, 1981, the
notification to the Ministry that there was compliance with the two-thirds
strike vote and other formal requirements of the law and Implementing
Rules. 8 Several conciliation meetings called by the Ministry followed,
with petitioner manifesting its willingness to have a revised Code of
Conduct that would be fair to all concerned but with a plea that in the
meanwhile the Code of Conduct being imposed be suspended a position
that failed to meet the approval of private respondent. Subsequently,
respondent, 9 on September 25, 1981, certified the labor dispute to the
National Labor Relations Commission for compulsory arbitration and
enjoined any strike at the private respondent's establishment. 10 The
labor dispute was set for hearing by respondent National Labor
Relations Commission on September 28,
1981. 11 There was in the main an admission of the above relevant facts
by public respondents. Private respondent, following the lead of
petitioner labor union, explained its side on the controversy regarding
the Code of Conduct, the provisions of which as alleged in the petition
were quite harsh, resulting in what it deemed indefinite preventive
suspension apparently the principal cause of the labor dispute. At this
stage, as mentioned, it would be premature to discuss the merits, or lack
of it, of such claim, the matter being properly for the Ministry of Labor to
determine.
The very next day after the filing of the petition, to be exact on September
29, 1981, this Court issued the following resolution: "Considering the
allegations contained, the issues raised and the arguments adduced in
the petition for certiorari with prayer for a restraining order, the Court
Resolved to (a) require the respondents to file an [answer], not a motion
to dismiss, on or before Wednesday, October 7, 1981; and (b) [Set] this
case for hearing on Thursday, October 8, 1981 at 11:00 o'clock in the
morning. 12 After the parties were duly heard, Solicitor General Estelito
P. Mendoza 13 appearing for the public respondents, the case was
considered ripe for decision. 14
To repeat, while the unconstitutionality of the amendatory act has not
been demonstrated, there is no ruling on the question of unconstitutional
application, especially so as to any alleged infringement in the exercise
of the power of compulsory arbitration of the specific modes provided in
the Constitution to assure compliance with the constitutional mandate to
"afford protection to labor" being at this stage premature.
1. The allegation that there is undue delegation of legislative powers
cannot stand the test of scrutiny. The power which he would deny the
Minister of Labor by virtue of such principle is for petitioner labor union
within the competence of the President, who in its opinion can best
determine national interests, but only when a strike is in
progress. 15 Such admission is qualified by the assumption that the
President "can make law," " an assertion which need not be passed upon
in this petition.'What possesses significance for the purpose of this
litigation is that it is the President who "Shall have control of the
ministries. 16 It may happen, therefore, that a single person may occupy
a dual position of Minister and Assemblyman. To the extent, however,
that what is involved is the execution or enforcement of legislation, the
Minister is an official of the executive branch of the government. The
adoption of certain aspects of a parliamentary system in the amended
Constitution does not alter its essentially presidential character. Article
VII on the presidency starts with this provision: "The President shall be
the head of state and chief executive of the Republic of the
Philippines. 17 Its last section is an even more emphatic affirmation that
it is a presidential system that obtains in our government. Thus: "All
powers vested in the President of the Philippines under the 1935
Constitution and the laws of the land which are not herein provided for
or conferred upon any official shall be deemed and are hereby vested in
the President unless the Batasang Pambansa provides
otherwise. 18 There is a provision, of course, on the Prime Minister, but
the Constitution is explicit that while he shall be the head of the Cabinet,
it is the President who nominates him from among the members of the
Batasang Pambansa, thereafter being "elected by a majority of all the
Page 2 of 6
members thereof. 19 He is primarily, therefore, a Presidential choice. He
need not even come from its elected members. He is responsible, along
with the Cabinet, to the Batasang Pambansa for the program of
government but as "approved by the
President. 20 His term of office as Prime Minister "shall commence from
the date of his election by the Batasang Pambansa and shall end on the
date that the nomination of his successor is submitted by the President
to the Batasang Pambansa. Any other member of the Cabinet or the
Executive Committee may be removed at the discretion of the
President. 21 Even the duration of his term then depends on the
Presidential pleasure, not on legislative approval or lack of it. During his
incumbency, he exercises supervision over all ministries, 22 a recognition
of the important role he plays in the implementation of the policy of the
government, the legislation duly enacted in pursuance thereof, and the
decrees and orders of the President. To the Prime Minister can thus be
delegated the performance of the administrative functions of the
President, who can then devote more time and energy in the fulfillment
of his exacting role as the national leader. 23 As the only one whose
constituency is national it is the President who, by virtue of his election
by the entire electorate, has an indisputable claim to speak for the
country as a whole. Moreover, it is he who is explicitly granted the
greater power of control of such ministries. He continues to be the
Executive, the amplitude and scope of the functions entrusted to him in
the formulation of policy and its execution leading to the apt observation
by Laski that there is not one aspect of which that does not affect the
lives of all. The Prime Minister can be of valuable assistance indeed to
the President in the discharge of his awesome responsibility, but it is the
latter who is vested with powers, aptly characterized by Justice Laurel
in Planas v. Gil 24 as "broad and extraordinary [being] expected to govern
with a firm and steady hand without vexation or embarrassing
interference and much less dictation from any source. 25 It may be said
that Justice Laurel was referring to his powers under the 1935
Constitution. It suffices to refer anew to the last section of the article of
the present Constitution on the presidency to the effect that all powers
vested in the President of the Philippines under the 1935 Constitution
remain with him. It cannot be emphasized too strongly that under the
1935 Constitution. "The Executive power shall be vested in the President
of the Philippines. 26
2. A later decision, Villena v. Secretary of Interior 27 greater relevance to
this case. The opinion of Justice Laurel, again the ponente, made clear
that under the presidential system, "all executive and administrative
organizations are adjuncts of the Executive Department, the heads of
the various executive departments are assistants and agents of the
Chief Executive, and, except in cases where the Chief Executive is
required by the Constitution or the law to act in person or the exigencies
of the situation demand that he act personally, the multifarious executive
and administrative functions of the Chief Executive are performed by and
through the executive departments, and the acts of the secretaries of
such departments, performed and promulgated in the regular course of
business, are, unless disapproved or reprobated by the Chief Executive,
presumptively the acts of the Chief Executive. 28 At the time of the
adoption of the present Constitution on January 17, 1973, this Court had
cited with approval the above ruling of Villena in twelve cases. 29 It is
particularly noteworthy that the first decision promulgated under the
present Constitution reiterating the above doctrine is
Philippine American Management Co. v. Philippine American
Management Employees Association. 30 For the question therein
involved, as in this case, is the statutory grant of authority to the then
Secretary of Labor, now Minister of Labor, by the Minimum Wage Law
to refer to the then existing Court of Industrial Relations for arbitration
the dispute that led to a strike. It is indisputable, according to the opinion,
that in the very petition, the Secretary of Labor on January 6, 1972,
pursuant to the Minimum Wage Law, "endorsed the controversy on the
precise question of whether or not petitioner Philippine American
Management Company was complying with its mandatory terms. What
was done by him, as a department head, in the regular course of
business and conformably to a statutory provision is, according to settled
jurisprudence that dates back to an authoritative pronouncement by
Justice Laurel in 1939 in Villena v. Secretary of the Interior,
presumptively the act of the President, who is the only dignitary who
could, paraphrasing the language of the decision, disapprove or
reprobate it. What other response could be legitimately expected from
Page 3 of 6
respondent Court then? It could not just simply fold its hands and refuse
to pass on the dispute. 31 The Villena doctrine was stressed even more
in denying a motion for reconsideration by a more extensive citation from
the ponencia of Justice Laurel: "Without minimizing the importance of
the heads of the various departments, their personality is in reality but
the projection of that of the President. Stated otherwise, and as forcibly
characterized by Chief Justice Taft of the Supreme Court of the United
States, "each head of a department is, and must be, the President's alter
ego in the matters of that department where the President is required by
law to exercise authority." ... Secretaries of departments, of course,
exercise certain powers under the law but the law cannot impair or in
any way affect the constitutional power of control and direction of the
President. As a matter of executive policy, they may be granted
departmental autonomy as to certain matters but this is by mere
concession of the executive, in the absence of valid legislation in the
particular field. If the President, then, is the authority in the Executive
Department, he assumes the corresponding responsibility. The head of
a department is a man of his confidence; he control and directs his acts;
he appoints him and can remove him at pleasure; he is the executive,
not any of his secretaries. It is therefore logical that he, the President,
should be answerable for the acts of administration of the entire
Executive Department before his own conscience no less than before
that undefined power of public opinion which, in the language of Daniel
Webster, is the last repository of popular government. 32 So it should be
in this case.
3. Even on the assumption, indulged in solely because of the claim
earnestly and vigorously pressed by counsel for petitioner, that the
authority conferred to the Minister of Labor partakes of a legislative
character, still no case of an unlawful delegation of such power may be
discerned. That is the teaching from Edu v. Ericta 33 Thus: "What cannot
be delegated is the authority under the Constitution to make laws and to
alter and repeal them; the test is the completeness of the statute in all
its term and provisions when it leaves the hands of the legislature, To
determine whether or riot there is an undue delegation of legislative
power, the inquiry must be directed to the scope and definiteness of the
measure enacted. The legislature does not abdicate its functions when
it describes what job must be done, who is to do it, and what is the scope
of his authority. For a complex economy, that may indeed be the only
way in which the legislative process can go forward. A distinction has
rightfully been made between delegation of power to make the laws
which necessarily involves a discretion as to what it shall be, which
constitutionally may not be done, and delegation of authority or
discretion as to its execution to be exercised under and in pursuance of
the law, to which no valid objection can be made. The Constitution is
thus not to be regarded as denying the legislature the necessary
resources of flexibility and practicability. To avoid the taint of unlawful
delegation, there must be a standard, which implies at the very least that
the legislature itself determines matters principle and lays down
fundamental policy. Otherwise, the charge of complete abdication may
be hard to repel. A standard thus defines legislative policy, marks its
limits, maps out its boundaries and specifies the public agency to apply
it. It indicates the circumstances under which the legislative command is
to be effected. It is the criterion by which legislative purpose may be
carried out. Thereafter, the executive or administrative office designated
may in pursuance of the above guidelines promulgate supplemental
rules and regulations. The standard may be either express or implied. If
the former, the non-delegation objection is easily met. The standard
though does not have to be spelled out specifically. It could be implied
from the policy and purpose of the act considered as a whole. ... This is
to adhere to the recognition given expression by Justice Laurel in a
decision [Pangasinan Transportation v. Public Service Commission]
announced not-too-long after the Constitution came into force and effect
that the principle of non-delegation 'has been made to adapt itself to the
complexities of modem governments giving rise to the adoption, within
certain limits, of the principle of "subordinate legislation" not only in the
United States and England but in practically all modern governments He
continued: 'Accordingly, with the growing complexity of modern life, the
multiplication of the subjects of governmental regulation, and the
increased difficulty of administering the laws, there is a constantly
growing tendency toward the delegation of greater powers by the
legislature and toward the approval of the practice by the courts.'
Consistency with the conceptual approach requires the reminder that
what is delegated is authority non-legislative in character, the
Page 4 of 6
completeness of the statute when it leaves the hands of Congress being
assumed. Our later decisions speak to the same effect. Thus from
Justice J.B.L. Reyes in People v. Exconde; 'It is well established in this
jurisdiction that, while the making of laws is a non-delegable activity that
corresponds exclusively to Congress, nevertheless the latter may
constitutionally delegate authority to promulgate rules and regulations to
implement a given legislation and effectuate its policies, for the reason
that the legislature often finds it impracticable (if not impossible) to
anticipate and provide for the multifarious and complex situations that
may be met in carrying the law into effect. All that is required is that the
regulation should be germane to the objects and purposes of the law;
that the regulation be not in contradiction with it; but conform to the
standards that the law prescribes.' 34 Batas Pambansa Blg. 130 cannot
be any clearer, the coverage being limited to "strikes or lockouts
adversely affecting the national interest."
4. The strict rule on non-delegation was enunciated by Justice Laurel
in People v. Vera, 35 Which declared unconstitutional the then Probation
Act. 36 Such an approach, conceded, by some constitutionalists to be
both scholarly and erudite nonetheless aroused apprehension for being
too rigid and inflexible. While no doubt appropriate in that particular case,
the institution of a new mode of treating offenders, it may pose difficulty
for social and economic legislation needed by the times. Even prior to
the above-cited Pangasinan Transportation decision, Justice Laurel
himself in an earlier decision, People v. Rosenthal in 1939, promulgated
less than two years after Vera, pointed out that such doctrine of non-
delegation "has been made to adopt itself to the complexities of modern
governments, giving rise to the adoption, within certain limits, of the
principle of 'subordinate legislation' not only in the United States and
England but in practically all modern governments. The difficulty lies in
the fixing of the limit and extent of the authority. While courts have
undertaken to lay down general principles, the safest is to decide each
case according to its peculiar environment, having in mind the
wholesome legislative purpose intended to be achieved. 37 After which,
in came the even more explicit formulation in Pangasinan Transportation
appearing in the quoted excerpt from Edu v. Ericta. There is no question
therefore that there is a marked drift in the direction of a more liberal
approach. It is partly in recognition of the ever increasing needs for the
type of legislation allowing rule-making in accordance with standards,
explicit or implicit, discernible from a perusal of the entire enactment that
in Agricultural Credit and Cooperative Financing Administration v.
Confederation of Unions in Government Corporations and Offices" 38 the
then Justice, now the retired Chief Justice and presently Speaker,
Makalintal had occasion to refer to "the growing complexities of society"
as well as "the increasing social challenges of the times. 39 It would be
self-defeating in the extreme if the legislation intended to cope with the
grave social and economic problems of the present and foreseeable
future would founder on the rock of an unduly restrictive and decidedly
unrealistic meaning to be affixed to the doctrine of non-delegation.
Fortunately with the retention in the amended Constitution of some
features of the 1973 Constitution as originally adopted leading to an
appreciable measure of concord and harmony between the policy-
making branches of the government, executive and legislative, the
objection on the grounds of non- delegation would be even less
persuasive. It is worth repeating that the Prime Minister, while the choice
of the President, must have the approval of all members of the Batasang
Pambansa. 40 At least the majority of the cabinet members, the Ministers
being appointed by the President, if heads of ministries, shall come from
its regional representatives. 41 So, also, while the Prime Minister and the
Cabinet are responsible to the Batasang Pambansa for the program of
government, it must be one "approved by the President. 42 While
conceptually, there still exists a distinction between the enactment of
legislation and its execution, between formulation and implementation,
the fundamental principle of separation of powers of which non-
delegation is a logical corollary becomes even more flexible and
malleable. Even in the case of the United States, with its adherence to
the Madisonian concept of separation of powers, President Kennedy
could state that its Constitution did not make "the Presidency and
Congress rivals for power but partners for progress [with the two
branches] being trustees for the people, custodians of their
heritage. 43 With the closer relationship provided for by the amended
Constitution in our case, there is likely to be even more promptitude and
dispatch in framing the policies and thereafter unity and vigor in their
execution. A rigid application of the non-delegation doctrine, therefore,
Page 5 of 6
would be an obstacle to national efforts at development and progress.
There is accordingly more receptivity to laws leaving to administrative
and executive agencies the adoption of such means as may be
necessary to effectuate a valid legislative purpose. It is worth noting that
a highly-respected legal scholar, Professor Jaffe as early as 1947, could
speak of delegation as the "dynamo of modern government. 44 He then
went on to state that "the occasions for delegating power to
administrative offices [could be] compassed by a single
generalization. 45 Thus: "Power should be delegated where there is
agreement that a task must be performed and it cannot be effectively
performed by the legislature without the assistance of a delegate or
without an expenditure of time so great as to lead to the neglect of
equally important business. Delegation is most commonly indicated
where the relations to be regulated are highly technical or where their
regulation requires a course of continuous decision. 46 His perceptive
study could rightfully conclude that even in a strictly presidential system
like that of the United States, the doctrine of non-delegation reflects the
American "political philosophy that insofar as possible issues be settled
[by legislative bodies], an essentially restrictive approach" may ignore
"deep currents of social force. 47 In plainer terms, and as applied to the
Philippines under the amended Constitution with the close ties that bind
the executive and legislative departments, certain features of
parliamentarism having been retained, it may be a deterrent factor to
much needed legislation. The spectre of the non-delegation concept
need not haunt, therefore, party caucuses, cabinet sessions or
legislative chambers.
5. By way of summary, this Court holds that Batas Pambansa Blg. 130
insofar as it empowers the Minister of Labor to assume jurisdiction over
labor disputes causing or likely to cause strikes or lockouts adversely
affecting the national interest and thereafter decide it or certify the same
the National Labor Relations Commission is not on its face
unconstitutional for being violative of the doctrine of non-delegation of
legislative power. To repeat, there is no ruling on the question of whether
or not it has been unconstitutionally applied in this case, for being
repugnant to the regime of self-organization and free collective
bargaining, as on the facts alleged, disputed by private respondent, the
matter is not ripe for judicial determination. It must be stressed anew,
however, that the power of compulsory arbitration, while allowable under
the Constitution and quite understandable in labor disputes affected with
a national interest, to be free from the taint of unconstitutionality, must
be exercised in accordance with the constitutional mandate of protection
to labor. The arbiter then is called upon to take due care that in the
decision to be reached, there is no violation of "the rights of workers to
self-organization, collective bargaining, security of tenure, and just and
humane conditions of work. 48 It is of course manifest that there is such
unconstitutional application if a law "fair on its face and impartial in
appearance (is) applied and administered by public authority with an evil
eye and an unequal hand. 49 It does not even have to go that far. An
instance of unconstitutional application would be discernible if what is
ordained by the fundamental law, the protection of labor, is ignored or
disregarded.
WHEREFORE, the petition is dismissed for lack of merit. During the
pendency of the compulsory arbitration proceedings, both petitioner
labor union and private respondent are enjoined to good faith
compliance with the provisions of Batas Pambansa Blg. 130. No costs.
Barredo, Makasiar, Concepcion, Jr., Fernandez, Guerrero, Abad
Santos, De Castro and Melencio-Herrera, JJ., concur.
Teehankee, Aquino, JJ., concurs in the result.
Page 6 of 6
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 124873 July 14, 1999
UNITED BF HOMEOWNER'S ASSOCIATON, and HOME INSURANCE
AND GUARANTY CORPORATION, petitioners,
vs.
BF HOMES, INC., respondents.
PARDO, J.:
Assailed in this petition for review on certiorari is the decision 1 and
resolution 2 of the Court of Appeals granting respondent BFHI's petition for
prohibition, and ordering Atty. Roberto C. Abrajano, hearing officer of the
Home Insurance and Guaranty Corporation, to refrain from hearing HIGC
CASE NO. HOA-95-027 and to dismiss it for lack of jurisdiction.
The antecedent facts are as follows:
Petitioner United BF Homeowners' Association, Inc. (UBFHAI) is the
umbrella organization and sole representative of all homeowners in the BF
Homes Parañaque Subdivision, a seven hundred sixty five (765) hectare
subdivision located in the south of Manila. Respondent BF Homes, Inc.
(BFHI) is the owner-developer of the said subdivision, which first opened in
1968. 3
In 1988, because of financial difficulties, the Securities and Exchange
Commission (SEC) placed respondent BFHI under receivership to undergo
a ten-year (10) rehabilitation program, and appointed Atty. Florencio B.
Orendain receiver. The program was composed of two stages: (1) payment
of obligations to external creditors; and (2) payment of obligations to Banco
Filipino. 4
When Atty. Florencio B. Orendain took over management of respondent
BFHI in 1988, several things were not in order in the
subdivision. 5 Preliminary to the rehabilitation, Atty. Orendain entered into
an agreement with the two major homeowners' associations, the BF
Parañaque Homeowners Association, Inc. (BFPHAI) and the Confederation
of BF Homeowners Association, Inc. (CBFHAI), for the creation of a single,
representative homeowners' association and the setting up of an integrated
security program that would cover the eight (8) entry and exit points to and
from the subdivision. On December 20, 1988, this tripartite agreement was
reduced into a memorandum of agreement, and amended on March 1989.
Pursuant to these agreements, on May 18, 1989, petitioner UBFHAI was
created and registered with the Home Insurance and Guaranty Corporation
(HIGC), 6 and recognized as the sole representative of all the homeowners'
association inside the subdivision.
Respondent BFHI, through its receiver, turned over to petitioner UBFHAI
the administration and operation of the subdivision's clubhouse at #37 Pilar
Banzon Street, 7 and a strip of open space in Concha Cruz Garden
Row, 8 on June 23, 1989 and May, 1993, respectively.
On November 7, 1994, the first receiver was relieved and a new committee
of receivers, composed of respondent BFHI's eleven (11) members of the
board of directors was appointed. 9
On April 7, 1995, based on BFHI's title to the main roads, the newly
appointed committee of receivers sent a letter to the different homeowners'
association in the subdivision informing them that as a basic requirement for
BFHI's rehabilitation, respondent BFHI would be responsible for the security
of the subdivision in order to centralize it and abate the continuing
proliferation of squatters. 10
Page 1 of 5
On the same day, petitioner UBFHAI filed with the HIGC a petition
for mandamus with preliminary injunction against respondent BFHI. 11 In
substance, petitioner UBFHAI alleged that the committee of receivers
illegally revoked their security agreement with the previous receiver. They
complained that even prior to said date, the new committee of receivers
committed the following acts: (1) deferred petitioner UBFHAI's purchase of
additional pumps; (2) terminated the collection agreement for the community
assessment forged by the petitioner UBFHAI with the first receiver; (3)
terminated the administration and maintenance of the Concha Cruz Garden
Row; (4) sent a letter to petitioner UBFHAI stating that it recognized
BFPHAI 12 only, and that the subdivision's clubhouse was to be
administered by it only; and (5) took over the administration of security in
the main avenues in the subdivision.1âwphi1.nêt
On April 11, 1995, the HIGC issued ex parte a temporary restraining order.
Particularly, respondent BFHI was enjoined from:
. . . taking over the Clubhouse located at 37 Pilar Banzon
St., BF Homes Parañaque, Metro Manila, taking over
security in all the entry and exit points and main avenues of
BF Homes Parañaque Subdivision, impeding or preventing
the execution and sale at auction of the properties of BF
Parañaque Homeowners Association, Inc., in HIGC HOA-
90-138 and otherwise repudiating or invalidating any
contract or agreement of petitioner with the former
receiver/BFHI concerning funding or delivery of community
services to the homeowners represented by the latter. 13
On April 24, 1995, without filing an answer to petitioner UBFHAI's petition
with the HIGC, respondent BFHI filed with the Court of Appeals a petition
for prohibition for the issuance of preliminary injunction and temporary
restraining order, to enjoin HIGC from proceeding with the case. 14
On May 2, 1995, the HIGC issued an order deferring the resolution of
petitioner UBFHAI's application for preliminary injunction, until such time
that respondent BFHI's application for prohibition with the appellate court
has been resolved. When the twenty-day (20) effectivity of the temporary
restraining order had lapsed, the HIGC ordered the parties to maintain
the status quo. 15
Meanwhile, on November 27, 1995, the Court of Appeals promulgated its
decision 16 granting respondent BFHI's petition for prohibition, as follows:
WHEREFORE, premises considered, the petition is hereby
GRANTED, prohibiting the public respondent Roberto C.
Abrajano from proceeding with the hearing of HIGC CASE
NO. HOA-95-027. Consequently, the public respondent is
hereby ordered to DISMISS HIGC CASE NO. HOA-95-027
for lack of jurisdiction.
SO ORDERED. 17
On April 24, 1996, the appellate court denied petitioner's motion for
reconsideration. 18
Hence, this petition for review on certiorari.
Petitioner UBFHAI raises two issues: (1) whether or not the Rules of
Procedure promulgated by the HIGC, specifically Section 1 (b), Rule II of
the "Rules of Procedure in the Settlement of Homeowners' Disputes" is
valid; (2) whether or not the acts committed by the respondent constitute an
attack on petitioner's corporate existence. 19 Corollary to these, petitioner
questions the appellate court's jurisdiction over the subject case.
Originally, administrative supervision over homeowners' associations was
vested by law with the Securities and Exchange Commission. On May 3,
1979, pursuant to Executive Order 535, 20 this function was delegated to the
Home Insurance and Guaranty Corporation (HIGC). 21 Section 2 of
Executive Order 535 provides:
2. In addition to the powers and functions vested under the
Home Financing Act, the Corporation, shall have among
others, the following additional powers;
Page 2 of 5
 (a) To require submission of and register
articles of incorporation of homeowners
associations and issue certificates of
incorporation/registration, upon
compliance by the registering associations
with the duly promulgated rules and
regulations thereon; maintain a registry
thereof; and exercise all the powers,
authorities and responsibilities that are
vested on the Securities and Exchange
Commission with respect to homeowners
association, the provision of Act 1459, as
amended by P.D. 902-A, to the contrary
notwithstanding;
By virtue of this amendatory law, the HIGC not only assumed the regulatory
and adjudicative functions of the SEC over homeowners' associations, but
also the original and exclusive jurisdiction to hear and decide cases
involving:
(b) Controversies arising out of intra-
corporate or partnership relations,
between and among stockholders,
members or associates; between any or all
of them and the corporation, partnership or
association of which they are stockholders,
members or associates, respectively; and
between such corporation, partnership or
association and the state insofar as it
concerns their individual franchise or right
to exist as such entity. 22
On December 21, 1989, the HIGC adopted its rules of procedure in the
hearing of homeowners' disputes. Section 1 (b), Rule II enumerated the
types of disputes over which the HIGC has jurisdiction, and these include:
Sec. 1. Types of Disputes — The HIGC or any person,
officer, body, board, or committee duly designated or
created by it shall have jurisdiction to hear and decide
cases involving the following:
xxx xxx xxx
(b) Controversies arising out of intra-
corporate relations between and among
members of the association, between any
and/or all of them and the association of
which they are members, and insofar as it
concerns its right to exist as a corporate
entity, between the association and
the state/general public or other entity.
[emphasis supplied]
Therefore, in relation to Section 5 (b), Presidential Decree 902-A, the
HIGC's jurisdiction over homeowners' disputes is limited to controversies
that arise out of the following intra-corporate relations: (1) between and
among members of the association; (2) between any or all of them and the
association of which they are members or associates; and (3) between such
association and the state, insofar as it concerns their individual franchise or
right to exist as such entity. (Emphasis supplied.)
Though it would seem that Section 1(b), Rule II of the HIGC's revised rules
of procedure is just a reproduction of Section 5 (b), Presidential Decree 902-
A, the rules deviated from the provisions of the latter. If the provisions of the
law would be followed to the letter, the third type of dispute over which the
HIGC has jurisdiction should be limited only to a dispute between the state
and the association, insofar as it concerns the association's franchise or
corporate existence. However, under the HIGC's revised rules of procedure,
the phrase "general public or other entity" 23 was added.
It was on this third type of dispute, as provided in Section 1 (b), Rule II of
the HIGC's revised rules of procedure that petitioner UBFHAI anchors its
claim that the HIGC has original and exclusive jurisdiction over the case. In
the comment filed by the HIGC with the appellate court, it maintained that it
has original and exclusive jurisdiction over the dispute pursuant to the power
and authority granted it in the revised rules of procedure. Respondent BFHI
Page 3 of 5
disputes this, contending that the rules of procedure relied upon by
petitioner are not a valid implementation of Executive Order No. 535, as
amended, in relation to Presidential Decree 902-A.
The question now is whether HIGC, in promulgating the above-mentioned
rules of procedure, went beyond the authority delegated to it and unduly
expanded the provisions of the delegating law. In relation to this, the
question is whether or not the revised rule so of procedure are valid.
As early as 1970, in the case of Teoxon vs. Members of the Board of
Administrators (PVA), 24 we ruled that the power to promulgate rules in the
implementation of a statute is necessarily limited to what is provided for in
the legislative enactment. Its terms must be followed for an administrative
agency cannot amend an Act of Congress. 25 "The rule-making power must
be confined to details for regulating the mode or proceedings to carry into
effect the law as it has been enacted, and it cannot be extended to amend
or expand the statutory requirements or to embrace matters not covered by
the statute." 26 If a discrepancy occurs between the basic law and an
implementing rule or regulation, it is the former that prevails. 27
In the present case, the HIGC went beyond the authority provided by the
law when it promulgated the revised rules of procedure. There was a clear
attempt to unduly expand the provisions of Presidential Decree 902-A. As
provided in the law, insofar as the association's franchise or corporate
existence is involved, it is only the State, not the "general public or other
entity" that could question this. The appellate court correctly held that: "The
inclusion of the phrase GENERAL PUBLIC OR OTHER ENTITY is a matter
which HIGC cannot legally do . . . ." 28 The rule-making power of a public
administrative body is a delegated legislative power, which it may not use
either to abridge the authority given it by Congress or the Constitution or to
enlarge its power beyond the scope intended. Constitutional and statutory
provisions control what rules and regulations may be promulgated by such
a body, as well as with respect to what fields are subject to regulation by it.
It may not make rules and regulations which are inconsistent with the
provisions of the Constitution or a statute, particularly the statute it is
administering or which created it, or which are in derogation of, or defeat,
the purpose of a statute. 29
Moreover, where the legislature has delegated to an executive or
administrative officers and boards authority to promulgate rules to carry out
an express legislative purpose, the rules of administrative officers and
boards, which have the effect of extending, or which conflict with the
authority-granting statute, do not represent a valid exercise of the rule-
making power but constitute an attempt by an administrative body to
legislate. 30 "A statutory grant of powers should not be extended by
implication beyond what may be necessary for their just and reasonable
execution." 31 It is axiomatic that a rule or regulation must bear upon, and
be consistent with, the provisions of the enabling statute if such rule or
regulation is to be valid. 32
Thus, we hold that Rule II, Section 1(b) of HIGC's "Revised Rules of
Procedure in the Hearing of Homeowners' Disputes" is void, without ruling
on the validity of the rest of the rules.
Neither can the HIGC claim original and exclusive jurisdiction over the
petition for mandamus under the two other types of disputes enumerated in
Presidential Decree 902-A and in the revised rules. The dispute is not one
involving the members of the homeowners' association nor is it one between
any and/or all of the members and the association of which they are
members. The parties are the homeowners' association and the owner-
developer, acting at the same time as the corporation's committee of
receivers.
To reiterate, the HIGC exercises a very limited jurisdiction over
homeowners' disputes. The law confined this authority to controversies that
arise out of the following intra-corporate relations: (1) between and among
members of the association; (2) between any and/or all of them and the
association of which they are members; and (3) insofar as it concerns its
right to exist as a corporate entity, between the association and the state.
None of the parties to the litigation can enlarge or diminish it or dictate when
it shall attach or when it shall be removed. 33
Jurisdiction is defined as the power and authority of a court to hear, try and
decide a case. Jurisdiction over the subject matter is conferred by the
Constitution or by law. Nothing can change the jurisdiction of the court over
Page 4 of 5
the subject matter. That power is a matter of legislative enactment which
none but the legislature may change. 34

In light of the foregoing, we do not see the need to discuss the second issue.
Whether or not the acts committed or threatened to be committed by the
respondent against the petitioner would constitute an attack on the latter's
corporate existence would be immaterial. The HIGC has no jurisdiction to
hear and resolve the dispute.

Having dispensed with the question of jurisdiction, there is no need for the
HIGC to proceed with the hearing of HIGC-HOA 95-027. It would just be an
exercise in futility since it has no jurisdiction.

Furthermore, it was apparent that the board of directors of respondent BFHI,

acting as the committee of receivers, was only trying to find ways and means
to rehabilitate the corporation so that it can pay off its creditors. The
revocation of the security agreements and the removal of administration and
maintenance of certain property that are still under the name of respondent
BFHI, were acts done in pursuance of the rehabilitation program. All the
security agreements and undertakings were contractual in nature, which
respondent BFHI, acting as a committee of receivers and being the
successor of the former receiver, could very well alter or modify.1âwphi1.nêt

WHEREFORE, the Court DENIES the petition for review on certiorari, for
lack of merit. The decision and resolution appealed from in CA-G.R. SP.
NO. 37072 are AFFIRMED.

No costs.

SO ORDERED.

Davide, Jr., C.J., Melo, Kapunan and Ynares-Santiago, JJ., concur.

Page 5 of 5
 Republic of the Philippines The GSIS anchors its petition on Section 39 of its charter, RA 2 8291 (The
SUPREME COURT GSIS Act of 1997):
Manila
SEC. 39. Exemption from Tax, Legal Process and Lien. – It is hereby
EN BANC declared to be the policy of the State that the actuarial solvency of the funds
of the GSIS shall be preserved and maintained at all times and that
A.M. No. 08-2-01-0 February 11, 2010 contribution rates necessary to sustain the benefits under this Act shall be
kept as low as possible in order not to burden the members of the GSIS and
their employers. Taxes imposed on the GSIS tend to impair the actuarial
RE: PETITION FOR RECOGNITION OF THE EXEMPTION OF THE
solvency of its funds and increase the contribution rate necessary to
GOVERNMENT SERVICE INSURANCE SYSTEM FROM PAYMENT OF
sustain the benefits of this Act. Accordingly, notwithstanding any laws to
LEGAL FEES. GOVERNMENT SERVICE INSURANCE
the contrary, the GSIS, its assets, revenues including accruals thereto,
SYSTEM, Petitioner.
and benefits paid, shall be exempt from all taxes, assessments, fees,
charges or duties of all kinds. These exemptions shall continue unless
RESOLUTION expressly and specifically revoked and any assessment against the GSIS
as of the approval of this Act are hereby considered
CORONA, J.: paid.Consequently, all laws, ordinances, regulations, issuances,
opinions or jurisprudence contrary to or in derogation of this provision
May the legislature exempt the Government Service Insurance System are hereby deemed repealed, superseded and rendered ineffective and
(GSIS) from legal fees imposed by the Court on government-owned and without legal force and effect.
controlled corporations and local government units? This is the central issue
in this administrative matter. Moreover, these exemptions shall not be affected by subsequent laws to the
contrary unless this section is expressly, specifically and categorically
The GSIS seeks exemption from the payment of legal fees imposed on revoked or repealed by law and a provision is enacted to substitute or
government-owned or controlled corporations under Section 22,1 Rule 141 replace the exemption referred to herein as an essential factor to maintain
(Legal Fees) of the Rules of Court. The said provision states: and protect the solvency of the fund, notwithstanding and independently of
the guaranty of the national government to secure such solvency or liability.
SEC. 22. Government exempt. – The Republic of the Philippines, its
agencies and instrumentalities are exempt from paying the legal fees The funds and/or the properties referred to herein as well as the benefits,
provided in this Rule. Local government corporations and government- sums or monies corresponding to the benefits under this Act shall be exempt
owned or controlled corporations with or without independent charter from attachment, garnishment, execution, levy or other processes issued by
are not exempt from paying such fees. the courts, quasi-judicial agencies or administrative bodies including
Commission on Audit (COA) disallowances and from all financial obligations
However, all court actions, criminal or civil, instituted at the instance of the of the members, including his pecuniary accountability arising from or
provincial, city or municipal treasurer or assessor under Sec. 280 of the caused or occasioned by his exercise or performance of his official functions
Local Government Code of 1991 shall be exempt from the payment of court or duties, or incurred relative to or in connection with his position or work
and sheriff’s fees. (emphasis supplied) except when his monetary liability, contractual or otherwise, is in favour of
the GSIS. (emphasis supplied)

Page 1 of 6
The GSIS then avers that courts still assess and collect legal fees in actions
and proceedings instituted by the GSIS notwithstanding its exemption from
taxes, assessments, fees, charges, or duties of all kinds under Section 39.
For this reason, the GSIS urges this Court to recognize its exemption from
payment of legal fees.
According to the GSIS, the purpose of its exemption is to preserve and
maintain the actuarial solvency of its funds and to keep the contribution rates
necessary to sustain the benefits provided by RA 8291 as low as possible.
Like the terms "taxes," "assessments," "charges," and "duties," the term
"fees" is used in the law in its generic and ordinary sense as any form of
government imposition. The word "fees," defined as "charge[s] fixed by law
for services of public officers or for the use of a privilege under control of
government," is qualified by the phrase "of all kinds."3 Hence, it includes the
legal fees prescribed by this Court under Rule 141. Moreover, no distinction
should be made based on the kind of fees imposed on the GSIS or the GSIS’
ability to pay because the law itself does not distinguish based on those
matters.
The GSIS argues that its exemption from the payment of legal fees would
not mean that RA 8291 is superior to the Rules of Court. It would merely
show "deference" by the Court to the legislature as a co-equal branch.4 This
deference will recognize the "compelling and overriding" State interest in the
preservation of the actuarial solvency of the GSIS for the benefit of its
members.5
The GSIS further contends that the right of government workers to social
security is an aspect of social justice. The right to social security is also
guaranteed under Article 22 of the Universal Declaration of Human Rights
and Article 9 of the International Covenant on Economic, Social and Cultural
Rights. The Court has the power to promulgate rules concerning the
protection and enforcement of constitutional rights, including the right to
social security, but the GSIS is not compelling the Court to promulgate such
rules. The GSIS is merely asking the Court to recognize and allow the
exercise of the right of the GSIS "to seek relief from the courts of justice
sans payment of legal fees."6
Required to comment on the GSIS’ petition,7 the Office of the Solicitor
General (OSG) maintains that the petition should be denied. 8 According to
the OSG, the issue of the GSIS’ exemption from legal fees has been
resolved by the issuance by then Court Administrator Presbitero J. Velasco,
Jr.9 of OCA10 Circular No. 93-2004:
TO : ALL JUDGES, CLERKS OF COURT AND COURT PERSONNEL OF
THE METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN
CITIES, MUNICIPAL TRIAL COURTS, MUNICIPAL CIRCUIT TRIAL
COURTS, SHARI’A CIRCUIT COURTS
SUBJECT : REMINDER ON THE STRICT OBSERVANCE OF
ADMINISTRATIVE CIRCULAR NO. 3-98 (Re: Payment of Docket and Filing
Fees in Extra-Judicial Foreclosure); SECTION 21, RULE 141 OF THE
RULES OF COURT; SECTION 3 OF PRESIDENTIAL DECREE NO. 385;
and ADMINISTRATIVE CIRCULAR NO. 07-99 (Re: Exercise of Utmost
Caution, Prudence, and Judiciousness in Issuance of Temporary
Restraining Orders and Writs of Preliminary Injunctions)
Pursuant to the Resolution of the Third Division of the Supreme Court dated
05 April 2004 and to give notice to the concern raised by the [GSIS] to
expedite extrajudicial foreclosure cases filed in court, we wish to remind all
concerned [of] the pertinent provisions of Administrative Circular No. 3-98,
to wit:
2. No written request/petition for extrajudicial foreclosure of
mortgages, real or chattel, shall be acted upon by the Clerk of Court,
as Ex-Officio Sheriff, without the corresponding filing fee having
been paid and the receipt thereof attached to the request/petition
as provided for in Sec. 7(c), of Rule 141 of the Rules of Court.
3. No certificate of sale shall be issued in favor of the highest bidder
until all fees provided for in the aforementioned sections and
paragraph 3 of Section 9 (I) of Rule 141 of the Rules of Court shall
have been paid.The sheriff shall attach to the records of the case a
certified copy of the Official Receipt [O.R.] of the payment of the
fees and shall note the O.R. number in the duplicate of the
Certificate of Sale attached to the records of the case.
Page 2 of 6
Moreover, to settle any queries as to the status of exemption from payment
of docket and legal fees of government entities, Section 21, Rule 141 of the
Rules of Court explicitly provides:
SEC. 21. Government exempt. – The Republic of the Philippines, its
agencies and instrumentalities are exempt from paying the legal fees
provided in this Rule. Local governments and government-owned or
controlled corporations with or without independent charters are not
exempt from paying such fees.11
xxx xxx xxx
The OSG contends that there is nothing in Section 39 of RA 8291 that
exempts the GSIS from fees imposed by the Court in connection with judicial
proceedings. The exemption of the GSIS from "taxes, assessments, fees,
charges or duties of all kinds" is necessarily confined to those that do not
involve pleading, practice and procedure. Rule 141 has been promulgated
by the Court pursuant to its exclusive rule-making power under Section 5(5),
Article VIII of the Constitution. Thus, it may not be amended or repealed by
Congress.
On this Court’s order,12 the Office of the Chief Attorney (OCAT) submitted a
report and recommendation13 on the petition of the GSIS and the comment
of the OSG thereon. According to the OCAT, the claim of the GSIS for
exemption from the payment of legal fees has no legal basis. Read in its
proper and full context, Section 39 intends to preserve the actuarial solvency
of GSIS funds by exempting the GSIS from government impositions through
taxes. Legal fees imposed under Rule 141 are not taxes.
The OCAT further posits that the GSIS could not have been exempted by
Congress from the payment of legal fees. Otherwise, Congress would have
encroached on the rule-making power of this Court.
According to the OCAT, this is the second time that the GSIS is seeking
exemption from paying legal fees.14 The OCAT also points out that there are
other government-owned or controlled corporations and local government
units which asked for exemption from paying legal fees citing provisions in
their respective charters that are similar to Section 39 of RA 8291. 15 Thus,
the OCAT recommends that the petition of GSIS be denied and the issue
be settled once and for all for the guidance of the concerned parties.
Faced with the differing opinions of the GSIS, the OSG and the OCAT, we
now proceed to probe into the heart of this matter: may Congress exempt
the GSIS from the payment of legal fees? No.
The GSIS urges the Court to show deference to Congress by recognizing
the exemption of the GSIS under Section 39 of RA 8291 from legal fees
imposed under Rule 141. Effectively, the GSIS wants this Court to recognize
a power of Congress to repeal, amend or modify a rule of procedure
promulgated by the Court. However, the Constitution and jurisprudence do
not sanction such view.
Rule 141 (on Legal Fees) of the Rules of Court was promulgated by this
Court in the exercise of its rule-making powers under Section 5(5), Article
VIII of the Constitution:
Sec. 5. The Supreme Court shall have the following powers:
xxx xxx xxx
(5) Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the Integrated Bar, and legal assistance to
the underprivileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts
of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court.
xxx xxx x x x (emphasis supplied)
The power to promulgate rules concerning pleading, practice and procedure
in all courts is a traditional power of this Court.16 It necessarily includes the
Page 3 of 6
power to address all questions arising from or connected to the
implementation of the said rules.
The Rules of Court was promulgated in the exercise of the Court’s rule-
making power. It is essentially procedural in nature as it does not create,
diminish, increase or modify substantive rights. Corollarily, Rule 141 is
basically procedural. It does not create or take away a right but simply
operates as a means to implement an existing right. In particular, it functions
to regulate the procedure of exercising a right of action and enforcing a
cause of action.17 In particular, it pertains to the procedural requirement of
paying the prescribed legal fees in the filing of a pleading or any application
that initiates an action or proceeding.18
Clearly, therefore, the payment of legal fees under Rule 141 of the Rules of
Court is an integral part of the rules promulgated by this Court pursuant to
its rule-making power under Section 5(5), Article VIII of the Constitution. In
particular, it is part of the rules concerning pleading, practice and procedure
in courts. Indeed, payment of legal (or docket) fees is a jurisdictional
requirement.19 It is not simply the filing of the complaint or appropriate
initiatory pleading but the payment of the prescribed docket fee that vests a
trial court with jurisdiction over the subject-matter or nature of the
action.20 Appellate docket and other lawful fees are required to be paid
within the same period for taking an appeal.21 Payment of docket fees in full
within the prescribed period is mandatory for the perfection of an
appeal.22 Without such payment, the appellate court does not acquire
jurisdiction over the subject matter of the action and the decision sought to
be appealed from becomes final and executory.23
An interesting aspect of legal fees is that which relates to indigent or pauper
litigants. In proper cases, courts may waive the collection of legal fees. This,
the Court has allowed in Section 21, Rule 3 and Section 19, Rule 141 of the
Rules of Court in recognition of the right of access to justice by the poor
under Section 11, Article III of the Constitution.24 Mindful that the rule with
respect to indigent litigants should not be ironclad as it touches on the right
of access to justice by the poor,25 the Court acknowledged the exemption
from legal fees of indigent clients of the Public Attorney’s Office under
Section 16-D of the Administrative Code of 1987, as amended by RA
9406.26 This was not an abdication by the Court of its rule-making power but
simply a recognition of the limits of that power. In particular, it reflected a
keen awareness that, in the exercise of its rule-making power, the Court
may not dilute or defeat the right of access to justice of indigent litigants.
The GSIS cannot successfully invoke the right to social security of
government employees in support of its petition. It is a corporate entity
whose personality is separate and distinct from that of its individual
members. The rights of its members are not its rights; its rights, powers and
functions pertain to it solely and are not shared by its members. Its capacity
to sue and bring actions under Section 41(g) of RA 8291, the specific power
which involves the exemption that it claims in this case, pertains to it and
not to its members. Indeed, even the GSIS acknowledges that, in claiming
exemption from the payment of legal fees, it is not asking that rules be made
to enforce the right to social security of its members but that the Court
recognize the alleged right of the GSIS "to seek relief from the courts of
justice sans payment of legal fees."27
However, the alleged right of the GSIS does not exist. The payment of legal
fees does not take away the capacity of the GSIS to sue. It simply operates
as a means by which that capacity may be implemented.
Since the payment of legal fees is a vital component of the rules
promulgated by this Court concerning pleading, practice and procedure, it
cannot be validly annulled, changed or modified by Congress. As one of the
safeguards of this Court’s institutional independence, the power to
promulgate rules of pleading, practice and procedure is now the Court’s
exclusive domain. That power is no longer shared by this Court with
Congress, much less with the Executive.28
Speaking for the Court, then Associate Justice (now Chief Justice) Reynato
S. Puno traced the history of the rule-making power of this Court and
highlighted its evolution and development in Echegaray v. Secretary of
Justice:291avvphi1
Under the 1935 Constitution, the power of this Court to promulgate rules
concerning pleading, practice and procedure was granted but it appeared
to be co-existent with legislative power for it was subject to the power of
Page 4 of 6
Congress to repeal, alter or supplement. Thus, its Section 13, Article VIII "to promulgate rules concerning pleading, practice and procedure in all
provides: courts, x x x which, however, may be repealed, altered or supplemented by
the Batasang Pambansa x x x." More completely, Section 5(2)5 of its Article
Sec. 13. The Supreme Court shall have the power to promulgate rules X provided:
concerning pleading, practice and procedure in all courts, and the admission
to the practice of law. Said rules shall be uniform for all courts of the same xxx xxx xxx
grade and shall not diminish, increase, or modify substantive rights. The
existing laws on pleading, practice and procedure are hereby repealed as Sec. 5. The Supreme Court shall have the following powers.
statutes, and are declared Rules of Court, subject to the power of the
Supreme Court to alter and modify the same. The Congress shall have the
xxx xxx xxx
power to repeal, alter or supplement the rules concerning pleading, practice
and procedure, and the admission to the practice of law in the Philippines.
(5) Promulgate rules concerning pleading, practice, and procedure in all
courts, the admission to the practice of law, and the integration of the Bar,
The said power of Congress, however, is not as absolute as it may appear
which, however, may be repealed, altered, or supplemented by the
on its surface. In In re Cunanan, Congress in the exercise of its power to
Batasang Pambansa. Such rules shall provide a simplified and inexpensive
amend rules of the Supreme Court regarding admission to the practice of
procedure for the speedy disposition of cases, shall be uniform for all courts
law, enacted the Bar Flunkers Act of 1953 which considered as a passing of the same grade, and shall not diminish, increase, or modify substantive
grade, the average of 70% in the bar examinations after July 4, 1946 up to rights.
August 1951 and 71% in the 1952 bar examinations. This Court struck
down the law as unconstitutional. In his ponencia, Mr. Justice Diokno
held that "x x x the disputed law is not a legislation; it is a judgment - a Well worth noting is that the 1973 Constitution further strengthened the
judgment promulgated by this Court during the aforecited years affecting the independence of the judiciary by giving to it the additional power to
bar candidates concerned; and although this Court certainly can revoke promulgate rules governing the integration of the Bar.
these judgments even now, for justifiable reasons, it is no less certain
that only this Court, and not the legislative nor executive department, that The 1987 Constitution molded an even stronger and more independent
may do so. Any attempt on the part of these departments would be a clear judiciary. Among others, it enhanced the rule making power of this
usurpation of its function, as is the case with the law in question." The Court. Its Section 5(5), Article VIII provides:
venerable jurist further ruled: "It is obvious, therefore, that the ultimate power
to grant license for the practice of law belongs exclusively to this Court, xxx xxx xxx
and the law passed by Congress on the matter is of permissive character,
or as other authorities say, merely to fix the minimum conditions for the Section 5. The Supreme Court shall have the following powers:
license." By its ruling, this Court qualified the absolutist tone of the
power of Congress to "repeal, alter or supplement the rules concerning
xxx xxx xxx
pleading, practice and procedure, and the admission to the practice of law
in the Philippines.
(5) Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice and procedure in all courts, the
The ruling of this Court in In re Cunanan was not changed by the 1973
admission to the practice of law, the Integrated Bar, and legal assistance to
Constitution. For the 1973 Constitution reiterated the power of this Court
the underprivileged. Such rules shall provide a simplified and inexpensive

Page 5 of 6
procedure for the speedy disposition of cases, shall be uniform for all courts local government units will necessarily reduce the JDF and the SAJF.
of the same grade, and shall not diminish, increase, or modify substantive Undoubtedly, such situation is constitutionally infirm for it impairs the Court’s
rights. Rules of procedure of special courts and quasi-judicial bodies guaranteed fiscal autonomy and erodes its independence.
shall remain effective unless disapproved by the Supreme Court.
WHEREFORE, the petition of the Government Service Insurance System
The rule making power of this Court was expanded. This Court for for recognition of its exemption from the payment of legal fees imposed
the first time was given the power to promulgate rules concerning the under Section 22 of Rule 141 of the Rules of Court on government-owned
protection and enforcement of constitutional rights. The Court was also or controlled corporations and local government units is hereby DENIED.
granted for the first time the power to disapprove rules of procedure of
special courts and quasi-judicial bodies. But most importantly, the 1987 The Office of the Court Administrator is hereby directed to promptly issue a
Constitution took away the power of Congress to repeal, alter, or circular to inform all courts in the Philippines of the import of this resolution.
supplement rules concerning pleading, practice and procedure. In fine,
the power to promulgate rules of pleading, practice and procedure is no SO ORDERED.
longer shared by this Court with Congress, more so with the Executive.
RENATO C. CORONA
The separation of powers among the three co-equal branches of our
Associate Justice
government has erected an impregnable wall that keeps the power to
promulgate rules of pleading, practice and procedure within the sole
province of this Court. The other branches trespass upon this prerogative if
they enact laws or issue orders that effectively repeal, alter or modify any of
the procedural rules promulgated by this Court. Viewed from this
perspective, the claim of a legislative grant of exemption from the payment
of legal fees under Section 39 of RA 8291 necessarily fails.

Congress could not have carved out an exemption for the GSIS from the
payment of legal fees without transgressing another equally important
institutional safeguard of the Court’s independence — fiscal
autonomy.30 Fiscal autonomy recognizes the power and authority of the
Court to levy, assess and collect fees,31 including legal fees. Moreover, legal
fees under Rule 141 have two basic components, the Judiciary
Development Fund (JDF) and the Special Allowance for the Judiciary Fund
(SAJF).32 The laws which established the JDF and the SAJF33 expressly
declare the identical purpose of these funds to "guarantee the
independence of the Judiciary as mandated by the Constitution and public
policy."34 Legal fees therefore do not only constitute a vital source of the
Court’s financial resources but also comprise an essential element of the
Court’s fiscal independence. Any exemption from the payment of legal fees
granted by Congress to government-owned or controlled corporations and

Page 6 of 6
 Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 166620 April 20, 2010
ATTY. SYLVIA BANDA, CONSORICIA O. PENSON, RADITO V. PADRIGANO,
JEAN R. DE MESA, LEAH P. DELA CRUZ, ANDY V. MACASAQUIT, SENEN B.
CORDOBA, ALBERT BRILLANTES, GLORIA BISDA, JOVITA V. CONCEPCION,
TERESITA G. CARVAJAL, ROSANNA T. MALIWANAG, RICHARD ODERON,
CECILIA ESTERNON, BENEDICTO CABRAL, MA. VICTORIA E. LAROCO,
CESAR ANDRA, FELICISIMO GALACIO, ELSA R. CALMA, FILOMENA A.
GALANG, JEAN PAUL MELEGRITO, CLARO G. SANTIAGO, JR., EDUARDO
FRIAS, REYNALDO O. ANDAL, NEPHTALIE IMPERIO, RUEL BALAGTAS,
VICTOR R. ORTIZ, FRANCISCO P. REYES, JR., ELISEO M. BALAGOT, JR.,
JOSE C. MONSALVE, JR., ARTURO ADSUARA, F.C. LADRERO, JR., NELSON
PADUA, MARCELA C. SAYAO, ANGELITO MALAKAS, GLORIA RAMENTO,
JULIANA SUPLEO, MANUEL MENDRIQUE, E. TAYLAN, CARMELA BOBIS,
DANILO VARGAS, ROY-LEO C. PABLO, ALLAN VILLANUEVA, VICENTE R.
VELASCO, JR., IMELDA ERENO, FLORIZA M. CATIIS, RANIEL R. BASCO, E.
JALIJALI, MARIO C. CARAAN, DOLORES M. AVIADO, MICHAEL P. LAPLANA,
GUILLERMO G. SORIANO, ALICE E. SOJO, ARTHUR G. NARNE, LETICIA
SORIANO, FEDERICO RAMOS, JR., PETERSON CAAMPUED, RODELIO L.
GOMEZ, ANTONIO D. GARCIA, JR., ANTONIO GALO, A. SANCHEZ, SOL E.
TAMAYO, JOSEPHINE A.M. COCJIN, DAMIAN QUINTO, JR., EDLYN MARIANO,
M.A. MALANUM, ALFREDO S. ESTRELLA, and JESUS MEL SAYO, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, The Director
General of the Philippine Information Agency and The National
Treasurer, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
The present controversy arose from a Petition for Certiorari and prohibition
challenging the constitutionality of Executive Order No. 378 dated October 25, 2004,
issued by President Gloria Macapagal Arroyo (President Arroyo). Petitioners
characterize their action as a class suit filed on their own behalf and on behalf of all
their co-employees at the National Printing Office (NPO).
The NPO was formed on July 25, 1987, during the term of former President Corazon
C. Aquino (President Aquino), by virtue of Executive Order No. 285 1 which provided,
among others, the creation of the NPO from the merger of the Government Printing
Office and the relevant printing units of the Philippine Information Agency (PIA).
Section 6 of Executive Order No. 285 reads:
SECTION 6. Creation of the National Printing Office. – There is hereby created a
National Printing Office out of the merger of the Government Printing Office and the
relevant printing units of the Philippine Information Agency. The Office shall have
exclusive printing jurisdiction over the following:
a. Printing, binding and distribution of all standard and accountable forms
of national, provincial, city and municipal governments, including
government corporations;
b. Printing of officials ballots;
c. Printing of public documents such as the Official Gazette, General
Appropriations Act, Philippine Reports, and development information
materials of the Philippine Information Agency.
The Office may also accept other government printing jobs, including government
publications, aside from those enumerated above, but not in an exclusive basis.
The details of the organization, powers, functions, authorities, and related
management aspects of the Office shall be provided in the implementing details
which shall be prepared and promulgated in accordance with Section II of this
Executive Order.
The Office shall be attached to the Philippine Information Agency.
On October 25, 2004, President Arroyo issued the herein assailed Executive Order
No. 378, amending Section 6 of Executive Order No. 285 by, inter alia, removing the
exclusive jurisdiction of the NPO over the printing services requirements of
government agencies and instrumentalities. The pertinent portions of Executive
Order No. 378, in turn, provide:
Page 1 of 8
SECTION 1. The NPO shall continue to provide printing services to government
agencies and instrumentalities as mandated by law. However, it shall no longer
enjoy exclusive jurisdiction over the printing services requirements of the
government over standard and accountable forms. It shall have to compete with the
private sector, except in the printing of election paraphernalia which could be shared
with the Bangko Sentral ng Pilipinas, upon the discretion of the Commission on
Elections consistent with the provisions of the Election Code of 1987.
SECTION 2. Government agencies/instrumentalities may source printing services
outside NPO provided that:
2.1 The printing services to be provided by the private sector is superior in
quality and at a lower cost than what is offered by the NPO; and
2.2 The private printing provider is flexible in terms of meeting the target
completion time of the government agency.
SECTION 3. In the exercise of its functions, the amount to be appropriated for the
programs, projects and activities of the NPO in the General Appropriations Act (GAA)
shall be limited to its income without additional financial support from the
government. (Emphases and underscoring supplied.)
Pursuant to Executive Order No. 378, government agencies and instrumentalities
are allowed to source their printing services from the private sector through
competitive bidding, subject to the condition that the services offered by the private
supplier be of superior quality and lower in cost compared to what was offered by
the NPO. Executive Order No. 378 also limited NPO’s appropriation in the General
Appropriations Act to its income.
Perceiving Executive Order No. 378 as a threat to their security of tenure as
employees of the NPO, petitioners now challenge its constitutionality, contending
that: (1) it is beyond the executive powers of President Arroyo to amend or repeal
Executive Order No. 285 issued by former President Aquino when the latter still
exercised legislative powers; and (2) Executive Order No. 378 violates petitioners’
security of tenure, because it paves the way for the gradual abolition of the NPO.
We dismiss the petition.
Before proceeding to resolve the substantive issues, the Court must first delve into
a procedural matter. Since petitioners instituted this case as a class suit, the Court,
thus, must first determine if the petition indeed qualifies as one. In Board of
Optometry v. Colet,2 we held that "[c]ourts must exercise utmost caution before
allowing a class suit, which is the exception to the requirement of joinder of all
indispensable parties. For while no difficulty may arise if the decision secured is
favorable to the plaintiffs, a quandary would result if the decision were otherwise as
those who were deemed impleaded by their self-appointed representatives would
certainly claim denial of due process."
Section 12, Rule 3 of the Rules of Court defines a class suit, as follows:
Sec. 12. Class suit. – When the subject matter of the controversy is one of common
or general interest to many persons so numerous that it is impracticable to join all as
parties, a number of them which the court finds to be sufficiently numerous and
representative as to fully protect the interests of all concerned may sue or defend for
the benefit of all. Any party in interest shall have the right to intervene to protect his
individual interest.
From the foregoing definition, the requisites of a class suit are: 1) the subject matter
of controversy is one of common or general interest to many persons; 2) the parties
affected are so numerous that it is impracticable to bring them all to court; and 3) the
parties bringing the class suit are sufficiently numerous or representative of the class
and can fully protect the interests of all concerned.
In Mathay v. The Consolidated Bank and Trust Company,3 the Court held that:
An action does not become a class suit merely because it is designated as such in
the pleadings. Whether the suit is or is not a class suit depends upon the attending
facts, and the complaint, or other pleading initiating the class action should allege
the existence of the necessary facts, to wit, the existence of a subject matter of
common interest, and the existence of a class and the number of persons in the
alleged class, in order that the court might be enabled to determine whether the
members of the class are so numerous as to make it impracticable to bring them all
before the court, to contrast the number appearing on the record with the number in
the class and to determine whether claimants on record adequately represent the
class and the subject matter of general or common interest. (Emphases ours.)
Here, the petition failed to state the number of NPO employees who would be
affected by the assailed Executive Order and who were allegedly represented by
petitioners. It was the Solicitor General, as counsel for respondents, who pointed out
that there were about 549 employees in the NPO.4 The 67 petitioners undeniably
comprised a small fraction of the NPO employees whom they claimed to represent.
Page 2 of 8
Subsequently, 32 of the original petitioners executed an Affidavit of Desistance,
while one signed a letter denying ever signing the petition, 5 ostensibly reducing the
number of petitioners to 34. We note that counsel for the petitioners challenged the
validity of the desistance or withdrawal of some of the petitioners and insinuated that
such desistance was due to pressure from people "close to the seat of power."6 Still,
even if we were to disregard the affidavit of desistance filed by some of the
petitioners, it is highly doubtful that a sufficient, representative number of NPO
employees have instituted this purported class suit. A perusal of the petition itself
would show that of the 67 petitioners who signed the Verification/Certification of Non-
Forum Shopping, only 20 petitioners were in fact mentioned in the jurat as having
duly subscribed the petition before the notary public. In other words, only 20
petitioners effectively instituted the present case.
Indeed, in MVRS Publications, Inc. v. Islamic Da’wah Council of the Philippines,
Inc.,7 we observed that an element of a class suit or representative suit is the
adequacy of representation. In determining the question of fair and adequate
representation of members of a class, the court must consider (a) whether the
interest of the named party is coextensive with the interest of the other members of
the class; (b) the proportion of those made a party, as it so bears, to the total
membership of the class; and (c) any other factor bearing on the ability of the named
party to speak for the rest of the class.
Previously, we held in Ibañes v. Roman Catholic Church 8 that where the interests of
the plaintiffs and the other members of the class they seek to represent are
diametrically opposed, the class suit will not prosper.
It is worth mentioning that a Manifestation of Desistance, 9 to which the previously
mentioned Affidavit of Desistance10 was attached, was filed by the President of the
National Printing Office Workers Association (NAPOWA). The said manifestation
expressed NAPOWA’s opposition to the filing of the instant petition in any court.
Even if we take into account the contention of petitioners’ counsel that the NAPOWA
President had no legal standing to file such manifestation, the said pleading is a
clear indication that there is a divergence of opinions and views among the members
of the class sought to be represented, and not all are in favor of filing the present
suit. There is here an apparent conflict between petitioners’ interests and those of
the persons whom they claim to represent. Since it cannot be said that petitioners
sufficiently represent the interests of the entire class, the instant case cannot be
properly treated as a class suit.
As to the merits of the case, the petition raises two main grounds to assail the
constitutionality of Executive Order No. 378:
First, it is contended that President Arroyo cannot amend or repeal Executive Order
No. 285 by the mere issuance of another executive order (Executive Order No. 378).
Petitioners maintain that former President Aquino’s Executive Order No. 285 is a
legislative enactment, as the same was issued while President Aquino still had
legislative powers under the Freedom Constitution;11 thus, only Congress through
legislation can validly amend Executive Order No. 285.
Second, petitioners maintain that the issuance of Executive Order No. 378 would
lead to the eventual abolition of the NPO and would violate the security of tenure of
NPO employees.
Anent the first ground raised in the petition, we find the same patently without merit.
It is a well-settled principle in jurisprudence that the President has the power to
reorganize the offices and agencies in the executive department in line with the
President’s constitutionally granted power of control over executive offices and by
virtue of previous delegation of the legislative power to reorganize executive offices
under existing statutes.
In Buklod ng Kawaning EIIB v. Zamora,12 the Court pointed out that Executive Order
No. 292 or the Administrative Code of 1987 gives the President continuing authority
to reorganize and redefine the functions of the Office of the President. Section 31,
Chapter 10, Title III, Book III of the said Code, is explicit:
Sec. 31. Continuing Authority of the President to Reorganize his Office. – The
President, subject to the policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have continuing authority to reorganize the
administrative structure of the Office of the President. For this purpose, he may take
any of the following actions:
(1) Restructure the internal organization of the Office of the President
Proper, including the immediate Offices, the President Special
Assistants/Advisers System and the Common Staff Support System, by
abolishing, consolidating or merging units thereof or transferring functions
from one unit to another;
(2) Transfer any function under the Office of the President to any other
Department or Agency as well as transfer functions to the Office of the
President from other Departments and Agencies; and
Page 3 of 8
 (3) Transfer any agency under the Office of the President to any other
department or agency as well as transfer agencies to the Office of the
President from other Departments or agencies. (Emphases ours.)
Interpreting the foregoing provision, we held in Buklod ng Kawaning EIIB, thus:
But of course, the list of legal basis authorizing the President to reorganize any
department or agency in the executive branch does not have to end here. We must
not lose sight of the very source of the power – that which constitutes an express
grant of power. Under Section 31, Book III of Executive Order No. 292 (otherwise
known as the Administrative Code of 1987), "the President, subject to the policy in
the Executive Office and in order to achieve simplicity, economy and efficiency, shall
have the continuing authority to reorganize the administrative structure of the Office
of the President." For this purpose, he may transfer the functions of other
Departments or Agencies to the Office of the President. In Canonizado v. Aguirre
[323 SCRA 312 (2000)], we ruled that reorganization "involves the reduction of
personnel, consolidation of offices, or abolition thereof by reason of economy or
redundancy of functions." It takes place when there is an alteration of the existing
structure of government offices or units therein, including the lines of control,
authority and responsibility between them. The EIIB is a bureau attached to the
Department of Finance. It falls under the Office of the President. Hence, it is subject
to the President’s continuing authority to reorganize.13 (Emphasis ours.)
It is undisputed that the NPO, as an agency that is part of the Office of the Press
Secretary (which in various times has been an agency directly attached to the Office
of the Press Secretary or as an agency under the Philippine Information Agency), is
part of the Office of the President.14
Pertinent to the case at bar, Section 31 of the Administrative Code of 1987 quoted
above authorizes the President (a) to restructure the internal organization of the
Office of the President Proper, including the immediate Offices, the President
Special Assistants/Advisers System and the Common Staff Support System, by
abolishing, consolidating or merging units thereof or transferring functions from one
unit to another, and (b) to transfer functions or offices from the Office of the President
to any other Department or Agency in the Executive Branch, and vice versa.
Concomitant to such power to abolish, merge or consolidate offices in the Office of
the President Proper and to transfer functions/offices not only among the offices in
the Office of President Proper but also the rest of the Office of the President and the
Executive Branch, the President implicitly has the power to effect less radical or less
substantive changes to the functional and internal structure of the Office of the
President, including the modification of functions of such executive agencies as the
exigencies of the service may require.
In the case at bar, there was neither an abolition of the NPO nor a removal of any of
its functions to be transferred to another agency. Under the assailed Executive Order
No. 378, the NPO remains the main printing arm of the government for all kinds of
government forms and publications but in the interest of greater economy and
encouraging efficiency and profitability, it must now compete with the private sector
for certain government printing jobs, with the exception of election paraphernalia
which remains the exclusive responsibility of the NPO, together with the Bangko
Sentral ng Pilipinas, as the Commission on Elections may determine. At most, there
was a mere alteration of the main function of the NPO by limiting the exclusivity of
its printing responsibility to election forms.15
There is a view that the reorganization actions that the President may take with
respect to agencies in the Office of the President are strictly limited to transfer of
functions and offices as seemingly provided in Section 31 of the Administrative Code
of 1987.
However, Section 20, Chapter 7, Title I, Book III of the same Code significantly
provides:
Sec. 20. Residual Powers. – Unless Congress provides otherwise, the President
shall exercise such other powers and functions vested in the President which are
provided for under the laws and which are not specifically enumerated above, or
which are not delegated by the President in accordance with law. (Emphasis ours.)
Pursuant to Section 20, the power of the President to reorganize the Executive
Branch under Section 31 includes such powers and functions that may be provided
for under other laws. To be sure, an inclusive and broad interpretation of the
President’s power to reorganize executive offices has been consistently supported
by specific provisions in general appropriations laws.
In the oft-cited Larin v. Executive Secretary,16 the Court likewise adverted to certain
provisions of Republic Act No. 7645, the general appropriations law for 1993, as
among the statutory bases for the President’s power to reorganize executive
agencies, to wit:
Section 48 of R.A. 7645 provides that:
Page 4 of 8
"Sec. 48. Scaling Down and Phase Out of Activities of Agencies Within the Executive
Branch. — The heads of departments, bureaus and offices and agencies are hereby
directed to identify their respective activities which are no longer essential in the
delivery of public services and which may be scaled down, phased out or abolished,
subject to civil [service] rules and regulations. x x x. Actual scaling down, phasing
out or abolition of the activities shall be effected pursuant to Circulars or Orders
issued for the purpose by the Office of the President."
Said provision clearly mentions the acts of "scaling down, phasing out and abolition"
of offices only and does not cover the creation of offices or transfer of functions.
Nevertheless, the act of creating and decentralizing is included in the subsequent
provision of Section 62, which provides that:
"Sec. 62. Unauthorized organizational changes. — Unless otherwise created by law
or directed by the President of the Philippines, no organizational unit or changes in
key positions in any department or agency shall be authorized in their respective
organization structures and be funded from appropriations by this Act."
The foregoing provision evidently shows that the President is authorized to effect
organizational changes including the creation of offices in the department or agency
concerned.
The contention of petitioner that the two provisions are riders deserves scant
consideration. Well settled is the rule that every law has in its favor the presumption
of constitutionality. Unless and until a specific provision of the law is declared invalid
and unconstitutional, the same is valid and binding for all intents and
purposes.17 (Emphases ours)
Buklod ng Kawaning EIIB v. Zamora,18 where the Court upheld as valid then
President Joseph Estrada’s Executive Order No. 191 "deactivating" the Economic
Intelligence and Investigation Bureau (EIIB) of the Department of Finance, hewed
closely to the reasoning in Larin. The Court, among others, also traced from the
General Appropriations Act19 the President’s authority to effect organizational
changes in the department or agency under the executive structure, thus:
We adhere to the precedent or ruling in Larin that this provision recognizes the
authority of the President to effect organizational changes in the department or
agency under the executive structure. Such a ruling further finds support in Section
78 of Republic Act No. 8760. Under this law, the heads of departments, bureaus,
offices and agencies and other entities in the Executive Branch are directed (a) to
conduct a comprehensive review of their respective mandates, missions, objectives,
functions, programs, projects, activities and systems and procedures; (b) identify
activities which are no longer essential in the delivery of public services and which
may be scaled down, phased-out or abolished; and (c) adopt measures that will
result in the streamlined organization and improved overall performance of their
respective agencies. Section 78 ends up with the mandate that the actual
streamlining and productivity improvement in agency organization and operation
shall be effected pursuant to Circulars or Orders issued for the purpose by the Office
of the President. x x x.20 (Emphasis ours)
Notably, in the present case, the 2003 General Appropriations Act, which was
reenacted in 2004 (the year of the issuance of Executive Order No. 378), likewise
gave the President the authority to effect a wide variety of organizational changes in
any department or agency in the Executive Branch. Sections 77 and 78 of said Act
provides:
Section 77. Organized Changes. – Unless otherwise provided by law or directed by
the President of the Philippines, no changes in key positions or organizational units
in any department or agency shall be authorized in their respective organizational
structures and funded from appropriations provided by this Act.
Section 78. Institutional Strengthening and Productivity Improvement in Agency
Organization and Operations and Implementation of Organization/Reorganization
Mandated by Law. The Government shall adopt institutional strengthening and
productivity improvement measures to improve service delivery and enhance
productivity in the government, as directed by the President of the Philippines. The
heads of departments, bureaus, offices, agencies, and other entities of the Executive
Branch shall accordingly conduct a comprehensive review of their respective
mandates, missions, objectives, functions, programs, projects, activities and
systems and procedures; identify areas where improvements are necessary; and
implement corresponding structural, functional and operational adjustments that will
result in streamlined organization and operations and improved performance and
productivity: PROVIDED, That actual streamlining and productivity improvements in
agency organization and operations, as authorized by the President of the
Philippines for the purpose, including the utilization of savings generated from such
activities, shall be in accordance with the rules and regulations to be issued by the
DBM, upon consultation with the Presidential Committee on Effective Governance:
PROVIDED, FURTHER, That in the implementation of
organizations/reorganizations, or specific changes in agency structure, functions
and operations as a result of institutional strengthening or as mandated by law, the
appropriation, including the functions, projects, purposes and activities of agencies
concerned may be realigned as may be necessary: PROVIDED, FINALLY, That any
unexpended balances or savings in appropriations may be made available for
Page 5 of 8
payment of retirement gratuities and separation benefits to affected personnel, as
authorized under existing laws. (Emphases and underscoring ours.)
Implicitly, the aforequoted provisions in the appropriations law recognize the power
of the President to reorganize even executive offices already funded by the said
appropriations act, including the power to implement structural, functional, and
operational adjustments in the executive bureaucracy and, in so doing, modify or
realign appropriations of funds as may be necessary under such reorganization.
Thus, insofar as petitioners protest the limitation of the NPO’s appropriations to its
own income under Executive Order No. 378, the same is statutorily authorized by
the above provisions.
In the 2003 case of Bagaoisan v. National Tobacco Administration, 21 we upheld the
"streamlining" of the National Tobacco Administration through a reduction of its
personnel and deemed the same as included in the power of the President to
reorganize executive offices granted under the laws, notwithstanding that such
streamlining neither involved an abolition nor a transfer of functions of an office. To
quote the relevant portion of that decision:
In the recent case of Rosa Ligaya C. Domingo, et al. vs. Hon. Ronaldo D. Zamora,
in his capacity as the Executive Secretary, et al., this Court has had occasion to also
delve on the President’s power to reorganize the Office of the President under
Section 31(2) and (3) of Executive Order No. 292 and the power to reorganize the
Office of the President Proper. x x x
xxxx
The first sentence of the law is an express grant to the President of a continuing
authority to reorganize the administrative structure of the Office of the President. The
succeeding numbered paragraphs are not in the nature of provisos that unduly limit
the aim and scope of the grant to the President of the power to reorganize but are to
be viewed in consonance therewith. Section 31(1) of Executive Order No. 292
specifically refers to the President’s power to restructure the internal organization of
the Office of the President Proper, by abolishing, consolidating or merging units
hereof or transferring functions from one unit to another, while Section 31(2) and (3)
concern executive offices outside the Office of the President Proper allowing the
President to transfer any function under the Office of the President to any other
Department or Agency and vice-versa, and the transfer of any agency under the
Office of the President to any other department or agency and vice-versa.
In the present instance, involving neither an abolition nor transfer of offices, the
assailed action is a mere reorganization under the general provisions of the law
consisting mainly of streamlining the NTA in the interest of simplicity, economy and
efficiency. It is an act well within the authority of the President motivated and carried
out, according to the findings of the appellate court, in good faith, a factual
assessment that this Court could only but accept.22 (Emphases and underscoring
supplied.)
In the more recent case of Tondo Medical Center Employees Association v. Court
of Appeals,23 which involved a structural and functional reorganization of the
Department of Health under an executive order, we reiterated the principle that the
power of the President to reorganize agencies under the executive department by
executive or administrative order is constitutionally and statutorily recognized. We
held in that case:
This Court has already ruled in a number of cases that the President may, by
executive or administrative order, direct the reorganization of government entities
under the Executive Department. This is also sanctioned under the Constitution, as
well as other statutes.
Section 17, Article VII of the 1987 Constitution, clearly states: "[T]he president shall
have control of all executive departments, bureaus and offices." Section 31, Book
III, Chapter 10 of Executive Order No. 292, also known as the Administrative Code
of 1987 reads:
SEC. 31. Continuing Authority of the President to Reorganize his Office - The
President, subject to the policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have continuing authority to reorganize the
administrative structure of the Office of the President. For this purpose, he may take
any of the following actions:
xxxx
In Domingo v. Zamora [445 Phil. 7 (2003)], this Court explained the rationale behind
the President’s continuing authority under the Administrative Code to reorganize the
administrative structure of the Office of the President. The law grants the President
the power to reorganize the Office of the President in recognition of the recurring
need of every President to reorganize his or her office "to achieve simplicity,
economy and efficiency." To remain effective and efficient, it must be capable of
being shaped and reshaped by the President in the manner the Chief Executive
deems fit to carry out presidential directives and policies.
Page 6 of 8
The Administrative Code provides that the Office of the President consists of the
Office of the President Proper and the agencies under it. The agencies under the
Office of the President are identified in Section 23, Chapter 8, Title II of the
Administrative Code:
Sec. 23. The Agencies under the Office of the President.—The agencies under the
Office of the President refer to those offices placed under the chairmanship of the
President, those under the supervision and control of the President, those
under the administrative supervision of the Office of the President, those attached to
it for policy and program coordination, and those that are not placed by law or order
creating them under any specific department.
xxxx
The power of the President to reorganize the executive department is likewise
recognized in general appropriations laws. x x x.
xxxx
Clearly, Executive Order No. 102 is well within the constitutional power of the
President to issue. The President did not usurp any legislative prerogative in issuing
Executive Order No. 102. It is an exercise of the President’s constitutional power of
control over the executive department, supported by the provisions of the
Administrative Code, recognized by other statutes, and consistently affirmed by this
Court.24 (Emphases supplied.)
Subsequently, we ruled in Anak Mindanao Party-List Group v. Executive
Secretary25 that:
The Constitution’s express grant of the power of control in the President justifies an
executive action to carry out reorganization measures under a broad authority of law.
In enacting a statute, the legislature is presumed to have deliberated with full
knowledge of all existing laws and jurisprudence on the subject. It is thus reasonable
to conclude that in passing a statute which places an agency under the Office of the
President, it was in accordance with existing laws and jurisprudence on the
President’s power to reorganize.
In establishing an executive department, bureau or office, the legislature necessarily
ordains an executive agency’s position in the scheme of administrative structure.
Such determination is primary, but subject to the President’s continuing authority to
reorganize the administrative structure. As far as bureaus, agencies or offices in the
executive department are concerned, the power of control may justify the President
to deactivate the functions of a particular office. Or a law may expressly grant the
President the broad authority to carry out reorganization measures. The
Administrative Code of 1987 is one such law.26
The issuance of Executive Order No. 378 by President Arroyo is an exercise of a
delegated legislative power granted by the aforementioned Section 31, Chapter 10,
Title III, Book III of the Administrative Code of 1987, which provides for the continuing
authority of the President to reorganize the Office of the President, "in order to
achieve simplicity, economy and efficiency." This is a matter already well-entrenched
in jurisprudence. The reorganization of such an office through executive or
administrative order is also recognized in the Administrative Code of 1987. Sections
2 and 3, Chapter 2, Title I, Book III of the said Code provide:
Sec. 2. Executive Orders. - Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. - Acts of the President which relate to particular
aspects of governmental operations in pursuance of his duties as administrative
head shall be promulgated in administrative orders. (Emphases supplied.)
To reiterate, we find nothing objectionable in the provision in Executive Order No.
378 limiting the appropriation of the NPO to its own income. Beginning with Larin
and in subsequent cases, the Court has noted certain provisions in the general
appropriations laws as likewise reflecting the power of the President to reorganize
executive offices or agencies even to the extent of modifying and realigning
appropriations for that purpose.
Petitioners’ contention that the issuance of Executive Order No. 378 is an invalid
exercise of legislative power on the part of the President has no legal leg to stand
on.
In all, Executive Order No. 378, which purports to institute necessary reforms in
government in order to improve and upgrade efficiency in the delivery of public
services by redefining the functions of the NPO and limiting its funding to its own
income and to transform it into a self-reliant agency able to compete with the private
sector, is well within the prerogative of President Arroyo under her continuing
delegated legislative power to reorganize her own office. As pointed out in the
Page 7 of 8
separate concurring opinion of our learned colleague, Associate Justice Antonio T.
Carpio, the objective behind Executive Order No. 378 is wholly consistent with the
state policy contained in Republic Act No. 9184 or the Government Procurement
Reform Act to encourage competitiveness by extending equal opportunity to private
contracting parties who are eligible and qualified.271avvphi1
To be very clear, this delegated legislative power to reorganize pertains only to the
Office of the President and the departments, offices and agencies of the executive
branch and does not include the Judiciary, the Legislature or the constitutionally-
created or mandated bodies. Moreover, it must be stressed that the exercise by the
President of the power to reorganize the executive department must be in
accordance with the Constitution, relevant laws and prevailing jurisprudence.
In this regard, we are mindful of the previous pronouncement of this Court in Dario
v. Mison28 that:
Reorganizations in this jurisdiction have been regarded as valid provided they are
pursued in good faith. As a general rule, a reorganization is carried out in "good faith"
if it is for the purpose of economy or to make bureaucracy more efficient. In that
event, no dismissal (in case of a dismissal) or separation actually occurs because
the position itself ceases to exist. And in that case, security of tenure would not be a
Chinese wall. Be that as it may, if the "abolition," which is nothing else but a
separation or removal, is done for political reasons or purposely to defeat security of
tenure, or otherwise not in good faith, no valid "abolition" takes place and whatever
"abolition" is done, is void ab initio. There is an invalid "abolition" as where there is
merely a change of nomenclature of positions, or where claims of economy are
belied by the existence of ample funds. (Emphasis ours.)
Stated alternatively, the presidential power to reorganize agencies and offices in the
executive branch of government is subject to the condition that such reorganization
is carried out in good faith.
private sector and in limiting the budget of the NPO to its income, will purportedly
lead to the gradual abolition of the NPO and the loss of security of tenure of its
present employees. In other words, petitioners avow that the reorganization of the
NPO under Executive Order No. 378 is tainted with bad faith. The basic evidentiary
rule is that he who asserts a fact or the affirmative of an issue has the burden of
proving it.31
A careful review of the records will show that petitioners utterly failed to substantiate
their claim. They failed to allege, much less prove, sufficient facts to show that the
limitation of the NPO’s budget to its own income would indeed lead to the abolition
of the position, or removal from office, of any employee. Neither did petitioners
present any shred of proof of their assertion that the changes in the functions of the
NPO were for political considerations that had nothing to do with improving the
efficiency of, or encouraging operational economy in, the said agency.
In sum, the Court finds that the petition failed to show any constitutional infirmity or
grave abuse of discretion amounting to lack or excess of jurisdiction in President
Arroyo’s issuance of Executive Order No. 378.
WHEREFORE, the petition is hereby DISMISSED and the prayer for a Temporary
Restraining Order and/or a Writ of Preliminary Injunction is hereby DENIED. No
costs.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice

If the reorganization is done in good faith, the abolition of positions, which results in
loss of security of tenure of affected government employees, would be valid. In
Buklod ng Kawaning EIIB v. Zamora,29 we even observed that there was no such
thing as an absolute right to hold office. Except those who hold constitutional offices,
which provide for special immunity as regards salary and tenure, no one can be said
to have any vested right to an office or salary.30

This brings us to the second ground raised in the petition – that Executive Order No.
378, in allowing government agencies to secure their printing requirements from the

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391337156 Legal Philosophy Notes docx

Juris Doctor (San Beda College Alabang)

Studocu is not sponsored or endorsed by any college or university

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STUDY NOTES
(By Wilbur Gadicho)

ON

CRISOLITO PASCUAL’S

INTRODUCTION
TO
LEGAL PHILOSOPHY
1997 Edition

About the Book Author:

CRISOLITO PASCUAL LL.B. (U.P.), LL.M. (Boston U.)
Associate Justice (Ret.) Court of Appeals of the Philippines
Professor of Law, U.P.
Former Director, U.P. Law Center
Former Editor, Philippine Law Journal and Journal of the Integrated Bar

Legal Philosophy – is the scholarly study of the law, legal theory,

and legal systems in general. Also called “jurisprudencia universalis”
or simply “jurisprudence” --- Black’s Law Dictionary, 9 th Ed

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Chapter 1: JURISPRUDENCE, JURAL AND NONJURAL LAWS

1. Nature of Jurisprudence
A. Proemium -
Case Law – the law to be found in the collection of the reported cases
that form all or part of the body of law within a given jurisdiction.
Jurisprudence (legal theory) – deals with the general philosophy of law,
which is the nature and elements of law. It is concerned with the
theoretical and technical aspects of law as a discipline.
Nature of Law – is concerned with its derivation, development, and
trust
Elements of the Law – deals with the concepts which are material to
the legal ordering of society, namely:
1. State
2. Sovereignty
3. Legal relations
4. Legal persons
5. Legal facts
6. Legal things

B. The Problem Stated –

1. What is the nature of the law? (Socrates)

2. Why is jurisprudence worth studying? (Cicero)

What should be done -- Orchestrate the sounds of different schools of
jurisprudence concerning the nature of the law.
How may the nature of the law be fully appreciated ---
1. Systematic understanding of the essence of the different theories
2. Rationalizing differences whenever possible
3. Emphasizing harmony
4. Making allowances for the areas where they overlap
5. Balancing the ideas that have led to undue emphasis in one direction
or another
C. The Different Schools of Jurisprudence
1. The historical school – appraises the law in the context of the
common consciousness of a group of people.
Question: Where did the law come from and how did it evolve?

2. The teleological school – thinks of the nature of the law in terms of

the moral and rational nature of humankind. This school understands
the law as strictly connected with morality and naturality.
Question: What is the telos of the law?

3. The positivist school – considers the law as a conscious norm of the

state backed by its authority and force. For this school the law is not
inherently moral or natural.
Question: What is the distinctive structure and content of the law?

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4. The functional school – views the nature of the law in terms of the
jural postulates, social interests and national policies of the people.
Question: How does the law work in weighing or adjusting the
competing individual and public interests?
5. The realist school – takes the nature of the law on the basis of the
on-going experiences and inter-experiences of people.
Question: Is the law verifiable in the practical life of the people?

6. The policy science school – looks at the nature of the law in relation
to the degree of success of society in the creation, clarification and
realization of social values
Question: What is the basis and limits of global, regional and national
legal orders in relation to social values?

2. Law in General
Law – is any rule of action or order of sequence from which any beings
whatsoever either will not, or cannot, or ought not to deviate.

A. Rule of action - any warrant, instruction measure, regulation, or decision

governing any act, conduct, transaction or proceeding, including its
consequences.
Example:
(1) a traffic regulation promulgated in accordance with a city or municipal
ordinance.

(2) A statute enacted by the legislature pursuant to its legislative powers

in the constitution.

Two important points that should be noted ---

(1) Conduct is included in the definition – this is necessary because there
are certain conduct that are productive of distinct legal effects and
consequences (such as “forbearance” which means intentional
refraining from action)
(2) They continue to apply with their sanctions in full force and effect
even though they are repeatedly violated or remained unobserved.

B. Order of Sequence – is any system of arrangement or consecutiveness,

or any uniformity of a given group of phenomena. Mainly concerned with
physical nature, order of sequence is also a law, such that any deviation
therefrom results in inconvenience, damage or injury. They are
“immutable” for they do not alter with time and place. And they are
“absolute” for they do not depend on the human will but operate
inexorably admitting of no exceptions.
Example:
(1) The numerals or integers – this system of numerical arrangement or
consecutiveness of the positional value of numbers cannot be
unilaterally varied without harmful consequences.

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(2) The pull or drag of gravity is an example of “uniformities” ---

uniformities of nature can be harnessed to good use but no human
being can violate or change any order or norm of physical nature
without harmful results.

C. Classification - Four Distinct Classes of RA and OS:

(1) That which necessarily determine the activities of human beings
(2) That which necessarily determine the motions and even the instincts
of dumb creatures
(3) That which necessarily determine the origin and growth of living
organisms, which governs the development of all forms of life, from the
simplest to the most complex
(4) That which necessarily determine the movements and course of
inanimate bodies or masses

D. Focal Point of Nondeviation

Three Types of Nondeviation
(1) Will-not category – means that there is a determination to abide with,
or avoid of. This force carries a connotation of future conformity,
prospective agreement, or eventual compliance.
(2) Cannot category – means that there is no other way but to obey or
comply with the rules of actions and the orders of sequence, no matter
how much the desire to act otherwise may be. This is indicative of a
present or actual condition of conformity. This category is the force
which gives the legal order the authority to try and punish lawbreakers.
(3) Ought-not category – there seems to be an alternative to action, but
such alternative is abandoned because it is the better part of prudence
to follow or comply with rather than refrain from the following or
complying with them.

3. Jural Law

A. Particular Sense –
 The term LAW refers to a statute: batas, ley, legge, lex, nomoi, loi,
gezets

Statue - is the written enactment of the legislative branch of the

government composed of definite provisions for definite situations to which
certain incentives and/or sanctions have been attached as means of
enforcement.

Legal Incentive – is a stimulus or motive developed through some

extraneous influence operating on the individual members of society. Ex. --
Tax exemptions, tax deductions, government loans, condonation of accrued
taxes, government subsidies, benefits and rewards.

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Legal Sanction – a coercive intervention or an eventual punishment

annexed to a violation of a rule or regulation. Ex. – fine, imprisonment,
destierro, loss or suspension of certain legal privileges, assessment of
damages, cost and interest

 May refer to any “contract” or “agreement” – these covenants are

binding in character and so the parties are said to be solemnly making
law for themselves.

 Law may also refer to any rule or opinion given by an agency of the
state or by a jurist, or by an authorized official of the government.

Example of regulation formulated by an agency of the state ---

(1) a rule of civil or criminal procedure promulgated by the
Supreme Court pursuant to its rule making power.
(2) Regulation issued by the Central Bank in accordance with its
charter and duly published in the Official Gazette.

Example of opinion given by a jurist ---

(1) “dangerous tendency” by Justice George Malcolm of the
Supreme Court of the Phils --- in the case of People vs Perez, as
follows:
“there is a seditious tendency in the words used which could easily
produce disaffection among the people with a disposition to remain
loyal to the government and obedient to the laws and tending to
disturb the peace of the community and the safety of the
government.”
(2) “clear and present danger” by Justice Oliver Wendell Holmes
(USA Supreme Court) --- in the case Schenck v United States:
“the character of every act depends upon the circumstances in which
it is done. . . , The question in every case is whether the words are
used in such circumstances and are of such a nature as to create a
clear and present danger that they will bring about the substantive
evils that Congress has a right to prevent”
(3) “no immediate decision” by Justice Antonio Villareal (Phils SC)
--- in Javellana vs La Paz Ice and Cold Storage Co.,Inc. it was held
that
“the various motions for postponement amounting to a systematic
method of blocking or delaying the ordinary course of the hearing of
an application for a certificate of public convenience will justify the
grant of a provisional permit to operate the public service applied for.”

Example of opinion of a jurisprudent ---

(1) A commentary on a particular branch of law --- the authority of

an opinion or commentary is based on the scholarship of the

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commentator. It is presumed that the courts take into consideration

only the opinions and commentaries of highly qualified persons.

Example of opinion of an authorized official of the government ---

(1) Ruling or opinion of the Secretary of Justice, who is the Chief
Legal Adviser

B. Collective Sense – when the term “law” is employed a collective or

aggregate term when
(1) it refers to the gross or bulk of specific or particular laws relating to
one subject-matter,
(2) it refers to the laws obtaining in a given society.

Example of totality of laws relating to subject-matter ---

(1) Civil Law
(2) Commercial Law
(3) Remedial Law
(4) Criminal Law
Example of the use of the term law with reference to particular laws from a
determinate source or origin --- Law of the Philippines

Three Divisions of Law in Collective Sense:

1. Substantive Law – defining rights and obligations

(a) Substantive private law
(1)The law of persons and family relations – defines the rights and
obligations of persons living in a politically organized society regarding
their personal and family relationships
(2)The law of property – defines the rights and obligations of persons living
in a politically organized society in relation to property and property
rights, including classes of legal things and proprietary concessions
(3)The law of obligation and contracts – defines the nature and source of
claim-duty, privilege-inability, power-liability and immunity-disability
relationships as well as the ones arising ex ques deleto
(4)The law of trade and commerce – defines rights and obligations
concerning land, sea and air traffic, shipment and business transactions
as well as ships and vessels, their crew and navigation.

(b) Substantive public law

(1)Constitutional law – deals with rights and obligations concerning the
fundamental or supreme law of the land, more particularly the
organization, powers and functions arising from the relationship of the
state to the people
(2)Public administrative law – body of legal rules defining rights and
obligations concerning the operation of the government both on its

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departmental and administrative functions and functions of public officers

in relation to private persons as well as the law on elections
(3)Criminal law – deals with the rights and obligations in connection with
crimes, criminals and punishments.

2. Remedial or Adjective Law – defining remedies and procedure

(a) Adjective private law
(1)Law on civil actions – deals with the rules by which a party prosecutes
another for the enforcement or protection of a right or the prevention or
redress of a wrong
(2)Law on special proceedings – deals with the processes which are not
pursued in the ordinary manner or procedure.

(b) Adjective public law – the law of criminal procedure which deals
with the rules defining legal remedies and procedures in criminal
actions whether they take on the nature of prosecutions of public
crimes or prosecutions of private crimes.

3. Special Law – defining rights and obligations during extra-ordinary

times
(a) Military law – deals with the system of rules and regulations for
the creation, government, and discipline of the armed force (applies
only to those who are in actual service)
(b) Martial law – deals with the system of rules and regulations
applied by military power in times of war or in times of grave public
danger (ceases when the situation has already turned to normal)
(c)Public international law – deals with the system of rules, regulations,
and principles which govern the relations between sovereign states,
and such other entities, not states, which are endowed with
international personality. Pertains to relationships connected with
states and international entities.

C. Abstract Sense – the term law is simply referred to as “law” without the
definite article preceding it. The central theme of the legal order in the
adjustment of human relations is kautusan not batas, derecho not ley,
diritto not legge, jus not lex, nomos not nomoi, droit not loi, recht not
gezets> The law is made up of not only a body of precepts but also a
body of innate and received ideals.

(1) Precepts – deals with the prescribed directions and trends concerning
a given subject matter.
(a) Rules – define or set the farthest limits of human activities and
actions. Composed of definite provisions for definite states of facts
to which certain definite incentives or sanctions or both are
attached as means of enforcement

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(b) Principles – are authoritative premises for legal and juristic

reasoning when a question not governed or covered by a rule for
adjudication. Do not contain incentives and sanctions. Their
importance lies in the fact that they may become the basis of rules,
concepts and standards.

(c)Concepts – are general categories into which specific cases and

things may be classified. Examples are legal concepts on:

1. Possession 2. Agency 3. Contract

4. Intention 5. Consideration 6. Negligence
This element of the law is important because it sets the materials of
the law in proper order and symmetry, reducing the mass of rules
into manageable size.

(d) Standards – are models or criteria to test or measure the

validity of specific acts for the purpose of determining responsibility
in the absence of specific rules.

1. Standards of fair competition – condemn acts characterized by

force, intimidation, deceit, machination, or any other unjust,
oppressive, or high-handed methods giving rise to a cause of
action by the person who thereby suffers damage. The essence
of fair competition is giving free and equal opportunity to all in
order to make choice or decision and other transactions and
enterprises or any lawful calling without restraint or intervention
from anyone other than for causes which the law accepts and
recognizes.
2. Standards of diligence (bonae pater familae / care of a good
father of a family) – is designed to minimize or prevent wrongful
acts or omissions. Negligence is then simply the absence of
diligence.
3. Standards of good faith – the honest belief in the validity of one’s
right, ignorance of a superior claim and absence of intention to
overreach another.

(2) Ideals
(a) Juristic ideals – rational theories which may reshape or change
the contents of legal rules and legal precepts. Example: Ordered
Liberty, constructed by Justice Benjamin Cardozo (US SC) in the
case Palko v. Connecticut --- “the rights guaranteed by the
constitution to the people are valuable and important but not all of
them are of the very essence of a scheme of ordered liberty.” This
means that there are certain rights that can be “withdrawn or
abolished and yet to do so is not to violate the principle of justice so

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rooted in the tradition and conscience of our people as to be ranked

as fundamental.” Examples are immunity from self-incrimination,
immunity from double jeopardy

(b) Ethical ideals are meant rational theories or syntheses of moral

responsibility and decent individual and group behaviour where the
aim is toward higher moral ground. It refers to what human conduct
and expectations should be.
Examples –
1. Loving one’s neighbour as set by Jesus Christ (basis of Tort rule
that a person must not cause damage or injury towards another
by taking reasonable care)
2. No one can enrich oneself at the expense of another (embodied
in the rule that everyone who acquires or comes into possession
of something at the expense of another without just or legal
ground must return the same)

(c)Political ideals – are meant rational theories and syntheses for the
fuller direction of the political processes and for the maintenance of
the general welfare and security of the people.
Example –
Un Moi Commun - Jean Jacques Rousseau posited the idea that
general will resides in the people. Since general will is directed
toward the common good then it is always just and should prevail
for the voice of the people is the voice of God.
This ideal was applied to Pavesich v. New England Life Insurance
Company, and Metropolitan Service v. Paredes (Phil SC) stated that
“sovereignty is derived from the will of the people, by the people,
and for the people”

(d) Economic ideals – meant rational theories and syntheses for the
efficient development of the economy. They refer to the economic
goals for the betterment of supply of limited goods and services and
their distribution to meet the enormous needs of the people.

4. Nonjural Law
A. Divine Law
(1) General Sense
Broadly speaking, divine law is the entire system of perfection which
God, in His infinite wisdom, has imprinted in the whole of nature to
govern its operations. The ancient Roman jurisprudents fondly called it
jus divinum.

(2) Strict Sense

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In this connotation, divine law means the law of religious faith which
concerns itself with the concepts of sin and salvation, of death and life,
of the temporal and the spiritual. It is generally agreed that in this
sense, divine law is revealed by God to humankind through various
means of revelation, such as vision, mystic dream, and deep religious
experience.
- Christianity: Divine law is found in the Old and the New Testaments
of the Bible. In the Old Testament, divine law is embodied in the
Ten Commandments. It is written that Moses, the great Hebrew
leader and prophet, received the Ten Commandments from God on
Mount Sinai, in the wilderness of the Sinai Peninsula. These
Commandments which are the epitome of man's duties toward God
and his neighbor, are the religious laws believed to have been
formally given by God through Moses.
- Islam: Divine law is embodied in the Quran as well as in the sunna
and hadith of Muhammed. The Quran is regarded by traditional
Muslim belief as the very word of God revealed to Muhammed
through the archangel Gabriel.

B. Natural Law
(1) Historical Background
- Sophocles (496-406 B.C.) considered natural law as a "higher law"
enjoying primacy over human conduct and order.
- Plato (437-370 B.C.) straightened the way for the development of
the natural law as a discipline to which human conduct and
relationships must conform in order to realize both the individual
and common good. Plato drew a dividing line between the ideal
natural law, which he characterized by the "ought" and its defiled
representation, which he delineated by the "is". Thus, Plato
emphasized the contrast between the natural and the
representational concept of justice. Plato distinguished between
what.is just by natural law and what is just by positive law.
- Aristotle (384-322 B.C.) gave a clearer distinction between natural
justice and legal justice. Aristotle differentiated between fair
equality-perfect justice and what is due and proper-imperfect
justice. Citing Sophocles, Aristotle posited the idea that the former
is binding everywhere even in the absence of communication or
contact among different peoples, as contrasted with the latter which
cannot be general without some kind of agreement. Thus, for
Aristotle, what is due and proper may sometimes be contrary to
what is fair and equal.
- At the time of the Stoics: All men are equal by divine right since all
men are of divine origin. Their outlook on life was characterized by
mental fortitude, discipline, and serenity in meeting uncertainties
and difficulties. Surveying the worsening conditions of life and order

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in the civil societies in the waning period of Roman rule, the Stoics
turned their attention to the regularity and uniformity of nature. To
gain a life of discipline and calmness one must live naturally - to live
and move according to nature. For the Stoics then human conduct
must be brought in agreement with the abiding character of nature.
- It was Epictetus (50-125 A.D.), a later Greek Stoic philosopher and
contemporary of St. Paul, who enhanced the metaphysical
significance of natural law on the basis of his aversion to
materialism. He believed that the moral nature and good faith of
human beings are defeated by dependence on material things. On
the basis of this metamaterialistic perspective, Epictetus viewed the
natural law as a discipline engraved, as it were, in the heart and
mind of human beings. Having attached the natural law to the
moral nature of human beings, the natural law became the
participation of humankind in the divine law. Thus, natural law
became the core of human personality and dignity enabling a
person to act with righteousness and justice.
- St. Paul, apostle and theologian, deepened the Greek concept of
the natural law. In his letter to the early Christians in Rome, he
spoke of persons "who have no knowledge of the law act in
accordance with it by the light of nature, they show that they have
the law in themselves for they demonstrate the effects of the law
operating in their own hearts, their own conscience endorse the
existence of such law, for there is something which condemns or
commends their actions." He is stressing conscience guided by love
and reason at the same time emphasizing the reality that there are
people who act according to natural law even though they may have
no idea about it. The reason for this is that their conscience guided
by love convince them of the righteousness of commendable
actions. This is St. Paul's concept of enlightened conscience as
judgment or choice rooted in the heart and mind of man.
- Augustine in turn echoed St. Paul when he expressed the view that
good faith is present in all human beings, not excluding the
perverted and the depraved, without regard to race, creed and
station in life. Thus, Augustine concluded that no one can really
plead ignorance of the natural law because his innate good faith and
moral nature are never silenced.

(2) Concept and Precepts

- Since the natural law is said to be present in and binding on all
persons at all times its precepts have been considered as
continuing, protective principles that hold for every human society
notwithstanding differences in ethical conceptions of expressing
them outwardly.

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- The Universal Declaration of Human Rights and the European

Convention on Human Rights are pointed out as the modem
expression of views of many different nations of widely differing
social and political ideas and philosophies. These agreements are
not the result of political agitation, propaganda or rhetoric but of
the presence in all human beings of the precepts of the natural law.
- The concept of the natural law may be stated as the universal
discipline of virtue impressed in the heart and mind of human
beings to guide them in the exercise of their rights, in the
performance of their obligations, in the observance of rules, and in
the preservation of peace and unity.

- Essential matters:
o the scope of natural law which is universal
o the character of natural law which is a discipline of virtue
o the relation of natural law to humankind which is its impression
in their hearts and minds
o the thrust of natural law which is to guide human beings in
their acts and utterances
- Precepts:
o Righteousness is the virtue of doing that which is right
o Justice is the attribute of administering that which is just
among persons
o Fairness is the quality of being honest
o Equality is the character of being impartial

(3) Place and Function in Legal Order

(a) Justificatory Use
- The natural law has been used to warrant some legal
innovation, or to support some claim to authority, or simply to
vindicate one's side of an issue or personal conviction.
- The natural law theory was also used to warrant the acceptance
of certain innovations in the law of nations. Alberto Gentili (also
known as Gentiles), Jugo de Groot (also known as Grotius) and
Puffendorf used the natural law theory as a broad basis for their
respective works dealing with the body of rules governing the
relations of sovereign states and entities which are endowed
with international personality. All three pub Heists called this
body of rules the law of nations. Jeremy Bentham was later to
call it public international law.
- The natural law theory was used by jurists-theologians to justify
the claim of the Romish Church to temporal powers.

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- Martin Luther also utilized the natural law concept in his drive to
modify and purify the older Church order and, later on, to
advance and support the Protestant Reformation, which
contributed greatly to the rapid rise of nationalism in Europe.
- John Locke, too, used it as the basis of his philosophy of natural
rights which he posited as inalienable. John Locke also used the
natural law to justify and warrant the people's withdrawal of
governmental power whenever the government persistently and
deliberately fails or flouts the will of the people.
- In more recent times, the natural law theory gave powerful
support for the Nuremberg concept of "crimes against
humanity" and for the Declaration of Human Rights of the
United Nations Organization.
- The natural law was utilized to justify the EDSA revolution in the
Philippines which crystallized the idea of people power.
- The natural law theory has also been utilized to justify
innovations in the legal system. For instance, in the Philippines
the Code Commission placed the precepts of "justice and equity
above strict legalism or form" in providing rules concerning such
legal concepts as quieting of title, reformation of instruments,
estoppel, trusts, and natural obligations.

(b) Oppositive Use

- The proponents of the natural law theory cannot seem to
overemphasize the idea that the natural law does not
countenance blind obedience. For them, "nonviolent
noncooperation with evil is as much a duty as is cooperation
with good."

(c)Regulatory Use
- The regulatory use of the natural law is rooted in the ancient
maxim lex injusta non est lex on the dicta of Cicero and
Thomas Aquinas.

- For Cicero, the natural law has definitely this function because it
is not allowable to deviate from the natural law, nor can it be
altered or abrogated. Neither can the people be released from
this law either by the State or by the people themselves.

- Thomas Aquinas, on the other hand, posited the idea that every
law enacted by the legislature enjoys the character of law to the
extent that it is derived from the natural law.

- Two grounds advanced by those who favor the regulatory use of

the natural law:

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o The first is that no statute can violate the precepts of the

natural law without producing an adverse reaction from the
people. It is not possible, then, that the people would have
yielded or entrusted power to their representatives to enact
statutes which would be "in violation of common right and
reason.
o It is contended that the people themselves may have
expressed their preference for the precepts of the natural law
in their constitution in establishing the state.

- Reasons why legal positivists disagree with the regulatory use of

natural law:
o The natural law is not a part of the legal system. It is merely
"the virgin gold of the mine ... unlike positive law which is
classified, reduced to order, and put in the shape of rules,
the coin in the mint, with its value ascertained and fixed."
o The natural law has no place in a politically organized society
where there is no particular established religion.
o It is antithetical to a good legal order. For stripped of its
abstract trappings, it advances the idea that legislative
enactments can be adjudged twice. First, by the constitution.
Second, even if constitutional but allegedly bad or evil, by
the natural law.

(d) Interpretative Use

- The use of the natural law theory in the construction or
interpretation of statutes arises when a particular situation or
condition is apparently within its spirit or purpose. This is
expressed in the familiar canon of statutory interpretation that a
thing which is within the letter of a statute is not within the
statute unless it be within the intention of the legislature.

- The second use of the natural law theory in statutory

construction or interpretation arises when a particular situation
or condition apparently not within the words of a statute is
nonetheless within its essence and purpose. This is signified in
the equally familiar rule of statutory interpretation that a thing
which is within the intention of the makers of a statute is as
much within the statute as if it were within the letter.

C. Moral Law
(1) Moral Order
This is the set of same reasonable and desirable standard of behavior
growing out of the same collective experiences.

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(2) Moral Norms

Moral norms are patterns of good and exemplary conduct which set
the moral tone or feeling of the community. They determine what
conduct or behavior may or may not be allowed or what acts may or
may not be done. They are the aggregate ethics of the community.
- Moral norms are positive and peremptory.
- Moral norms are not relative, advisory, or customary because they
are not subject to passing desires or opinions.

(3) Moral Law and Other Disciplines

- Divine law in the strict sense is the law of religious faith. Moral
law, while also concerned with the precepts of good and right
conduct as the basis of its norms, is not necessarily concerned
with the law of religious faith. For a person may not be religious
and still be ethical.
- Moral law differs also from physical law. The latter is the totality of
uniformities and orders of sequence which combine together to
govern physical phenomena.

- Moral law differs from jural law insofar as enforcement is

concerned. While jural law is enforceable in the courts. Moral law
is enforced only by indefinite authority for there are no courts in
which it is administered as such.

(4) Moral and Social Norms

- Social norms deal with objective conduct only. They are really a
matter of unpredictable times, fickle usages and changing
circumstances. The fact is that actual valuations in social living are
diverse at different times and places.

- Social rules may even vary with each ethnic group of a particular
class of people. What is socially allowed in one part of a country
may not be so in another part of the same country.

- Social rules may prohibit something at one time and permit it at

another time and vice versa.

D. Physical Law
It is also known as the law of nature.
(1) Nature and Attributes
- Physical laws are imperative because they are fixed and
unbreakable.
- Physical laws are also regular because there is no break in their
sequence or constancy.

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(2) Discovered Norms

- Physical law should neither be confused nor equaled with the norms
of physical law as these are stated by their discoverers.
- The norms of physical law as stated by their discoverers are
generalized propositions or statements of observed phenomena
concerning order and regularity in the happening of certain natural or
physical events.

(3) Distinguished from Jural Law

- Since physical law is imperative and regular, its norms can be
reduced and worked out in mathematical equations. This is
something that cannot be properly done in case of the norms of jural
law because such norms are either prescriptions or proscriptions.
- The rules of jural law depend for their fulfillment upon human volition
or will, while the norms of physical law operate inevitably
independent of the human will.

(4) Distinguished from Divine Law

- Physical law is not exactly divine law. Physical law may, however, be
considered divine in the sense that it is ordained by God for the
course and operation of the cosmos or universe.
- Divine law in the general sense is similar to physical law. But this is
as far as the similarity goes, for divine law in the strict sense is not
the same as physical law. The former is the law of religious faith.

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Chapter 2: THE HISTORICAL PERSPECTIVE

1. Historical Perspective as a Starting Point
Freidrich Karl von Savigny (1779-1861) held that the law proceeds from the
volksgeist. For Savigny, the concept of the soul and spirit of the people
(diwayan) provides the sense of beginning and unfolding of the law. It is still
useful in the evaluation of the legal development of a nation especially its legal
history.

2. Historical Element in the Law

The presence of the historical element in the law is thus manifested by at least
two important marks: 1) the changes in the social existence of the people, and
2) the progressive conditions of their politico-legal development.

3. Historical View Limited in Scope

- Historical jurisprudence accepts the idea that what is peculiar to a group of
people is not necessarily true for another group of people.
- Each group of people has its own folksoul persisting from generation to
generation.
- In historical jurisprudence, the law is not universal in scope. It is only
national in character, conservatively oriented to the time, place and
individuality of a particular group of people.

4. Nature of the Law

"The law is the product of the huge mass of beliefs, opinions, prejudices, and
even superstitions of a people produced by institutions of human nature
reacting one upon another." - Henry Sumner Maine (1822-1888)

A. The Oblutiacs of a People

Having achieved a language, people began to articulate themselves by
means of their opinions, beliefs, longings, usages, traditions,
idiosyncracies, arts, customs, and superstitions. This huge mass of
oblutiacs reveals the national identity, character and genius of a people.
Together they form the common consciousness and intelligence of the
people.

B. The Folksoul
The folksoul (diwayan) is composed of several elements, each element a
treasury of the national identity, character and genius of a people. While
these elements belong to the folksoul they are distinct from one another.

(1) Folklore
In this treasury are deposited the beliefs and traditions of a group
of people, constitute the folk learning or folk wisdom handed down
from generation to generation in substantially the same form and

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content. That is why beliefs and traditions have been called lore – the
learning of the people. Folklore may survive in the form of epic tales,
parables and riddles.

(2) Folksaying
This treasury of the folksoul is composed of the opinions of the
people. These opinions are stronger than mere impressions. They are
expressions or announcements of orders and policies which the
members of the community are expected to follow.
o A maxim (sawikain) is a short or terse statement containing a
general truth or a timeless rule of conduct.

o A sentiment (sabi) is a settled sense, view or disposition colored

by feeling.

Non-Jural Examples:
- "Pag-aasawa'y di biro/ Kanin bagang isusubo't iluluwa kung
mapaso."
- "Mabuti na ang mamaLay na malinis ang budhi/ Kaysa mabuhay
na parang pusali."
- "Kung mainit ang kalan/ Huwag hipuin ng di na masaktan."
Jural Examples:
- "Ang mag-asawa sa ariarian ay iisa."
- "Huwag kang pumasok sa bakuran nino man nang huwag kang
masakupan."
- "Daig ng maagap ang masipag."

(3) Folkway
Folkways (kaugalian) are composed of customs and usages of the
people which make them reliable expressions of the folksoul.
Examples: pagmamagulang, lupon sanggunian, maybahay, bigay-
kaya, bigaypayo

(4) Folksong
This treasury of the folksoul reflects the musical expressions innate
to a people.

(5) Folkdance
In this category of the folksoul are included the dances indigenous or
unique to the people. They are performed to folk music either singly
or in company with others. Two characteristics:
- Significance or translation attached to them
- They are not for happy occasions alone but even for grim and
difficult times

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(6) Folkart
This category includes skills peculiar to a people applied to the
creation or fabrication of objects of art or objects of utility.

5. Life of the Law

- During the course of time many opinions, beliefs, usages, traditions, and
customs were either discarded or improved. Those that survived the
interactions of human relationships and institutions and have permeated the
people in common eventually solidified into the volkrecht or kautusan.
- The organic connection of the law with the life and spirit of the people
emphasizes the phenomenon that "for law there is no moment of absolute
cessation." The law is subject to the same changes that happen to the other
aspects of the life of the people.
- While the law grows with the development of the people, the law can die too
with the demise of the nation through the loss of the nation's individuality.

6. Basic Points of Historical Jurisprudence

In the framework of the historical view as to the nature of the law, two
important points stand out. First, the state is regarded as the highest
expression or personification of the law. Second, the law is found and not
deliberately made.

A. State and Folksoul

The state is considered as the highest expression of the folksoul. Indeed, it
is the highest national structure erected by the socio-political development
of the people. Putting the point in another way, the body politic is
considered by historical jurisprudence as the final juristic personification of a
people.

B. Law Not Deliberately Made

The law is not deliberately made by the effort of human will but is
discovered in the common consciousness of the people. Thus, historical
jurisprudence posits the idea that since the law "cannot be realized in the
individual but only in the species," then the law is the product of the
national genius or common consciousness, developed by the steady growth
and development of the people themselves. But while the law lives in the
common consciousness of the people, its meaning and impact on the
community are handled by a specialized group of individuals versed and
skilled in the law. These are the men of law- jurisprudents and jurists.

7. Similarity of Different Legal Orders

A. Historical Reason
- Political, commercial, religious and other types of contacts with other
groups of people have had a great deal to do with the resulting similarity
or even uniformity in the legal orders of different peoples.

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- Some aspects of a foreign legal system inconsistent with the oblutiacs of

a people coming under the dominion of another group of people need a
considerable degree of imposition. Ultimately, however, such outside and
unacceptable provisions of the foreign law are abolished.
- Example: When the Civil Code of the Philippines was instituted in 1949,
certain provisions of the Civil Code of Spain touching on dote, censos,
usos, and habitacion, which were inconsistent with the oblutiacs of the
Filipinos, were abolished.

B. Jurisprudential Reason
- The concept of a regular and progressive development of the law should
also explain the similarity or uniformity of different legal systems even in
the secondary applications of general or first principles.
- Different peoples may have particular legal rules, more or less similar,
for the resolution of the unjust and unequal situation referred to.
- Example: The Philippine legal order provides as a general rule that
actions prescribe by the mere lapse of time fixed by law. Thus, in the
secondary application of first principles the similarity in, or uniformity of,
some aspects of the legal orders of different peoples is still explainable.

8. Value of Historical Perspective

- The historical view of the nature of the law highlights the point that rules
and regulations governing human conduct can better survive the tensions of
social and political existence if and when they are in accordance with the
kindred consciousness and convictions of the people to whom such rules and
regulations are, after all, addressed.
- Several confirmatory provisions in the Civil Code of the Philippines:
o Article 10 of the Civil Code of the Philippines provides for the
presumption that the lawmaking body intended right and justice to
prevail whenever it enacts a statute. This is a jural expression of the
profound sense of, and love for, righteousness and justice of the people.
 Ilubog at dagnan man ang katwiran/ Ay pilit itong lulutang.
o Articles 19 through 36 of the Civil Code express the Filipino folkway
concerning human relations. They are basic principles that are to be
observed for the rightful relationship between human beings and for the
stability of the social order.
 Mahalaga ang puring patay/Sa masamang puring buhay.
 Masira man sa pamimilak/Huwag lamang sa pangungusap.
o Articles 198 through 211 of the Civil Code of the Philippines: It is nearer
to the ideal of family unity and is more in harmony with the traditional
oneness of the Filipino family.

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Chapter 3: THE TELEOLOGICAL PERSPECTIVE

1. Labels
- The label "philosophical jurisprudence" has been used to identify the
thinking and method of this juristic school. The reason for this is that the
major part of its discourse lies in the realm of metaphysics.
- This label emphasizes the fundamental point of view of this juristic school:
that the law is ordained for the achievement of the precepts of the natural
law, namely, righteousness, justice, fairness, and equity in the legal order.
- For this juristic· school, the achievement or realization of these precepts in
the legal order is the telos of the law.

2. Natural Law Basis

- The teleologists consider the natural law as the most potent force in the
development of legal institutions and legal concepts. This is based on their
view that there is a very present bond or relationship existing between
positive law and natural law.
- With the possible exception of some modern teleologists who advocate the
concept of the natural law with a changing content, the teleological school of
jurisprudence believes that a good legal order can be deduced from the
natural law, thus making the law universally valid for all peoples.

3. The Greek Concept

- Socrates, Plato and Aristotle believed that good faith in dealing with one
another is the condition of life in society. This means that human beings
have a basic idea of the precepts of the natural law enabling them to
distinguish between right and wrong and to discern between good and bad.
- They found their unassailable starting point in the study of the nature of law
in the moral nature and good faith of human beings. On this basis, not
power or might, human beings are able to live harmoniously with one
another.

A. Absolute Justice
- No person is intentionally bad or evil because of his or her understanding
of justice; the failure to do what is just and avoid what is unjust is really
due to morbid physiological appetites, mistakes, or even bad company.
Socrates drew a distinction between absolute knowledge of justice
(episteme) and mere opinion of justice (doxa).
- Only the temperate person knows himself or herself and thus able to
bring his or her emotions under control. Socrates explained that in
relation to the gods a temperate person will do what is virtuous and just,
in relation to rights and obligations a temperate person will do what
ought and avoid what ought not, and in relation to other persons a
temperate person will act properly, patiently enduring when necessary. A
temperate individual is a good. happy and sound person able to judge

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whether his or her acts and their consequences would be just (virtuous)
or unjust (vicious).

B. Rational Justice
- The reality or idea of "justice" exists in the mind even though one does
not see it done or performed in fact. Plato posited the concept of justice
yielding to the rational mind.
- Human beings are capable of discerning justice from injustice even in
their minds. Rational justice is sufficient to enable human beings to
attain their moral nature and good faith, keeping their self-respect by
doing good and fulfilling their proper functions in society.
- The law is an instrument of doing justice in the state, that is to say
preserving peace and harmony therein. Rational justice dictates that
every individual in the state should attend to his or her own function
whether he or she is a legislator, a judge, or whatever.

C. Particular Justice
- Aristotle denied Socrates' concept of absolute justice as too exacting for
it demanded the kind of moral excellence which is the culmination of all
virtues. Aristotle did not also agree with Plato's concept of rational justice
because it was still a subjective virtue.
- Justice is sound and sensible when, in light of events and circumstances,
it is fair and equal. In this context, Aristotle insisted that a person cannot
be unfairly or unequally treated even with her or his consent. Consent
cannot justify an unfair and unequal treatment. This Aristotelian insight
later became the basis of the Roman law concept of volenti non fit
iniuria ("to a willing person, injury is not done").
- Put differently, justice is a particular virtue not a universal ingredient in
the application of law in society. In the thinking of Aristotle, the rigidity
of the administration of justice, which is apparent in the jurisprudence of
Socrates and Plato, should be tempered with fair equality.
- Proportional justice and numerical justice differentiated. In the former,
each person receives what she or he is entitled to on the basis of ability
and achievement. In numerical justice, each person, regardless of station
in life, counts for one and only one.

D. Law as the Product of Reason Related to Justice and Equity

- Righteousness, justice, fairness, and equality are the potentialities of the
law. To this end all persons are to conform their actions because such an
end is part of the natural order of things. Aristotle, in particular, stoutly
believed that the law, viewed in this light and applied to particular
situations, would provide a generally acceptable solution.

4. The Roman Concept

A. Cicero

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- According to Cicero, since humankind "is governed naturally by utility,

then, to rule the different races and cultures under the Roman dominion
effectively, the law must be based on the principle of utility, that is to say
in the interest of the ruler and not for the interest of the governed.
- He introduced compulsion as an element of the law. He posited the idea
that the law cannot be an effective means of social control on the basis
of rationality alone but must also be able to compel obedience.
- Cicero opposed prudence as a factor in determining the justice or
injustice of an act or conduct. An act may be prudent but the question
remains: is it just and fair. An act may be against a legal rule but it may
still be just.

B. Gaius
- Gaius advanced the view that the rules established by the citizens to
govern themselves fall under the jus civile, while the rules common to
all other persons based on the natural law are classified under the jus
naturale.
- Those that are in derogation of the precepts of the natural law are not
laws at all. If such laws exist it is due to the sanctions attached to them,
not because they are laws. They do not contribute to the maintenance
and preservation of lawness. On the contrary, they are conducive to
lawlessness.
Laws must be reexamined by the lawmaking body every once in a while.
This process would provide the means for legal cleansing whereby any
abnormality or irregularity in the legal order could be adjusted to comply
with the end and purpose of the law.

5. The Aquinian Concept

- Thomas Aquinas thought of the law as an institution ordained by God.
Here the Greco-Roman notion of (impersonal) nature as the source of the
law was substituted by the power of God who is "the Legislator of the
whole of justice and Governor of all things." The people are then bound
to obey secular rules only to the extent that the precepts of the natural
law are met.
- Thomas Aquinas stated that "kings must be subject to priests, therefore,
as soon as a ruler falls under sentence of excommunication for apostasy
from the faith his subjects are ipso facto absolved from his rule and from
the oath of fealty which bound them to him.
- Thomas Aquinas expressed the view that a human being has a rational
soul and a will of his own. This is ordained by God for the universal good.
38 But a human being has also a nutritive soul.
- Human reason influenced as it is by physiological sensations is not
sufficient to bring human beings to a correct understanding of what is
right and just. Reasonable people have varied ideas as to what is right
and just. Human beings have biases and prejudices making it difficult to

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agree with them even when they claim to be acting in a reasonable

manner.
- Right reason is the governing rule of human conduct "for the common
good, which is preferable to one's proper good, because the common
good of the whole is God Himself."
- Should any rule or measure of action depart from the precepts of the
natural law, then it ls no longer valid but a perversion of the law.

A. Justice
- Justice as an ethical virtue - considered justice to be inherent in every
person.
- Justice as a juristic norm - considered justice as "the habit whereby
man renders to each one his rights by a constant and perpetual will.

B. Law and Sovereignty

- Sovereignty itself is, of course, not subject to law, for it is the author and
source of law, but in our system while sovereign powers are delegated to
the agencies of government, sovereignty itself remains with the people
by whom and for whom all government exists and acts. And the law is
the definition and limitation of power.

C. Immutability of Law
- The doctrine that the subsequent application of first principles may be
periodically expanded or contracted in accordance with the prevailing
conceptions of the times finds basis in the distinction drawn by Thomas
Aquinas as to the immutability of the law.
- Changes do occur in the subsequent applications of the law and these
changes may be by expansion or contraction in accordance with the
civilization of the time and place.

6. The Kantian Concept

By transcendental philosophy, Immanuel Kant (1724-1804) means learning or
understanding determined by the mind itself. It is pure knowledge for it is not
gained by or through sense experience.

A. Human Consciousness and Conduct

- The human mind has the capacity to construct or harmonize ideas and
concepts even prior to experiencing them by the physical senses.
- The truth and certainty of ideas and concepts depended on subsequent
experience or consequence, then they would be correct only a
posteriori but not a priori.
- Since the human mind is capable of forming and harmonizing ideas and
concepts independently of experience or consequence, then they would
be valid for all rational individuals at all times in all places which would
make them dependable guides to human actions and conduct.

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(1) The Principle of Rightness

The precepts of the natural law are not prompted by sense-experience
but by ethical altitude to do what is right and avoid what is wrong with
the application of the unique faculties of human consciousness, namely,
thinking, volition and judgment. This unique capacity for moral choice
sets human beings apart from other creatures. Kant called this the
principle of rightness.

(2) The Categorical Imperative

Immanuel Kant concluded that the universal criterion of right conduct
has to be categorical, that is to say one with its own unequivocal merit,
valid and good in itself, which all the people would know at once without
reference to subsequent experiences or conditions. Kant also concluded
that the universal criterion of right conduct has to be imperative, that is
to say compulsory and mandatory. Thus. Kant called his one and only
universal criterion of right conduct the "categorical imperative" and
expressed it in this wise: All persons living in society must act in
such a way that the maxim or cause of their conduct and
decisions would become the maxim of a universal law.

B. The Sense of Striving for Rightness

- First, Kant reiterated Aristotle's position that the philosophy of the
natural law should seek the level of humanity.
- Second, Kant reconciled the seemingly inconsistent notions of human
freedom and the demands of moral duty, thereby giving meaning to the
collective interests of the people.

C. Metalegal Basis of Law

- The clearest implication of this concept of the nature of the law is that an
individual can act freely when he or she strives for the ethical. For, as
Immanuel Kant puts it, "if the intention is not to teach virtue but only to
teach what is lawful, then, we need and ought not to adopt the law as a
guide for our conduct." It follows that a person cannot be treated merely
as a means to the telos of the law.

7. The Utility Supplement

- The doctrine of utilitarianism is traceable to Epicurus (342-270 B.C.).
Since then teleologists with the utilitarian complexion have considered
happiness as the measure of the goodness or badness of acts and their
consequences based on the hedonistic calculus.
- The telos of the law are the pleasures that are conducive to repose of
both individual and societal needs. Repose of mind, explained Epicurus,
is the situation or condition denoting freedom from pain.

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- The legal ordering of society must always be directed to the overcoming

of pain. This is based on the fact that pain appears to be the major part
of human existence and pleasure a temporary or transitory release from
pain.
- To achieve this end, modern utilitarians posit a combination of the theory
of the good (happiness as the highest good) and the theory of value (the
usefulness of an act or conduct depends on its consequences).

A. Stages of Modem Utilitarian Ethics

There are two distinct stages in the development of the modern utilitarian
supplement to the teleological perspective of the nature of the law:
Benthamite and Jherinian.

(1) The Benthamite Concept

Jeremy Bentham (1748-1832) felt that while an individual is a part of a
politically organized society, nevertheless, there remains an element of
his individuality that is not merged into society of which he is a
constituent part. It was Bentham's enduring contribution to jurisprudence
to have insisted with a reformer's zeal that the true worth of an act or
conduct depends on its consequence to the individual interest. This is the
stage that started individualist utilitarianism.
(a) Nature Basis
- Bentham utilized the same considerations that Epicurus and Plato
mentioned to be the foundation of an expedient theory of the
nature of the law, namely, what pleasures ought not to be sought
and what pains ought to be avoided.
- A person instinctively seeks and enjoys pleasure or happiness and
shuns and loathes pain or misery.

(b) Measure of Utility

- Bentham provided a measure of utility in terms of pleasures and
pains to evaluate the effects of acts and conduct on the greatest
happiness of the greatest number of individuals in the community.
- Pleasures of the physical senses
 of wealth, which are either of acquisitions or of possessions;
 of amity or self-recommendation which refer to the
possession of the good will of a particular person or persons
 of a good name or reputation,. which refer to the possession
of the goodwill of the society about him
 of power, which refer to the possession of the ability and
capacity to order or direct people by means of their hopes
and fears
 of piety, which refer to the possession of the good will or
favor of God either in this life or in the hereafter

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 of benevolence, which refer to the possession of charity or

human sympathy, good nature, tolerance, consideration, or
mercy
 of malevolence, which refer to the possession of ill-will,
malice. or antipathy on those who may become the objects of
malevolence
 of memory, which refer to those which one may experience
at recollecting some prior pleasurable experiences
 of imagination, which refer to the contemplation or
consideration of any pleasure which may be, in point of time,
present, past or future
 of expectation, which refer to the contemplation or
consideration of some future kind of pleasure accompanied
by the sentiment of belief
 of the ones dependent on association resulting from or
growing out of some association or connection with certain
objects or incidents which are in themselves pleasurable
 of relief, which refer to experiences which have to do with
cessation of pain
- Pains of which human beings are susceptible to:
 of privation, which refer to pains resulting from failure to
possess any of the several kinds of pleasures and include
pains of unsatisfied desire and pains of regret
 of senses, which are related to disagreeable sensations
 of awkwardness. which refer to the consciousness of lack or
want of skill or finesse
 of enmity, which refer to the pains which sometimes results
from the non-possession of the goodwill or the possession of
the ill-will of a particular person or persons
 of bad reputation, which refer to the non-possession of the
goodwill or the possession of the ill-will of society
 of impiety which refer to the non-possession of the goodwill
or favor of God
 of benevolence, resulting from the thought that someone
who happens to be the object of one's sympathy is enduring
pain
 of malevolence resulting from the thought that someone who
happens to be the object of one's antipathy is enjoying
pleasure
 of memory, which refer to those which one may experience
at recollecting some prior painful experience
 of imagination, which may be derived from the contemplation
or consideration of any such pains which may be, in point of
time, present, past or future

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 of expectation, which refer to the contemplation or

consideration of some future kind of pain accompanied by the
sentiment of belief
 of the ones dependent on association resulting from or
growing out of some association or connection with certain
objects or incidents which are in themselves painful

- Two ways of measuring the utility of an act and its consequences:

 The first is composed of several circumstances or factors, viz:
 Extensity, which refers to the number of person affected
 Endemic, which falls on certain individuals; it is called
primitive if it is confined to one individual, but it is
called derivative if it falls on certain individuals
because of their relations with, or their interests in,
the first enjoyer or sufferer
 Epidemic, which affects a larger number of individuals
in a community due to their awareness or
consciousness of the existence of the pleasure or pain;
with regard to pain, it may either be alarming or
dangerous depending on the factors characterizing it
 Pandemic, which falls on or spreads out to the entire
community
 Intensity, which refers to the degree of the pleasantness
or painfulness at a given time or over a given period of
time
 Duration, which refers to the period of time the pleasure
or pain lasts
 Propinquity, which refers to the influence of the more
immediate rather than the remote pleasures or pains
 Fecundity, which refers to the tendency to produce or
lead to either pleasures or pains
 Purity, which refers to the tendency not to produce either
pleasures or pains
 The second way of measuring the utility of an act or conduct
is also composed of several factors which have a great deal
to do with personal or individual differences as to sensibility
to pleasures or pains.
 These factors are temperament, health, strength,
physical defect, relationship, education, physical
condition, mental condition, sex, age, rank, occupation,
trade, profession, religion, honor, sympathies,
antipathies, ethnic group, and inclination.

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(c) Application in the Legal Order

- With this Jeremy Bentham sought to test all legislation and all acts
by their bearing on individual human happiness or misery.
Bentham concluded that the law is a system of social control
directing and governing persons to the maximum of happiness and
to the minimum of misery.
- Thus, rules should be judged by their tendency to promote
happiness and avoid pain.
- To this end, Bentham specified the ends of the law, namely, "to
provide substance, to produce abundance, to encourage equality,
and to maintain peace and security."
- This can be accomplished by direct pursuit of pleasure and
avoidance of pain.

(2) The Jherinian Concept

- Rudolf von Jhering (1818-1892) posited that there should be a
concurrence of selfish individual interests with the general purposes of
society.
- When the interests of society are met, then, the welfare of society is
served and. consequently, the welfare of the individual members of
society are met too.
- An act or conduct is good when it takes into consideration the interest
of society and tends to augment the happiness of the entire society.
Thus, the Jherinians are social utilitarians.

(a) Law of Purpose

Jhering's social utilitarianism is based on two principles:
- Principle of Purpose. Jhering stated that "purpose" is the prime
mover of the law. Choices and decisions are made for a purpose.
Human actions are thus end-directed. If the exercise of the human
will is determined by some external cause, then there is no more
reason to hold a person accountable and responsible for what he or
she does or does not do. Put differently, a wrongdoer could very
well plead the "because of” in order to relieve himself or herself of
responsibility for his or her conduct.
- Nature has endowed human beings with an interest in pleasures
and an inclination to shun pain. An act or conduct is subject to
pleasures and pain, but individual interests can best be realized in
concurrence with the collective purposes.

(b) Social Mechanics

To realize the partnership or concurrence of individual and social
purposes, the collective society or the politically organized society
applies its influence on the people by means of egoistic and altruistic
levers – this is social mechanics.

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- Egoistic levers. This type of levers refers to incentives addressed

to the region of self-interest or selfish purposes.
 Egoistic non-coercive lever are the fact or event of reward
and the fact or event of association.
 lever of reward are expectations of honor, respect, or
income
 lever of association are expectations of acceptance by
individuals or society providing a powerful incentive to the
individuals in the community to pursue interests where
others can share or participate in
 Egoistic coercive lever are the mechanical and psychological
means
 In the mechanical lever of coercion, society itself acts in
order to master, subdue, or break an individual's purpose.
Thus, for example, the state may send a person to prison
in order to prevent him from further realizing his criminal
fecundity.
 In the psychological lever of coercion, pressure is
exerted by society, just as in the first case, but the
mastering or breaking of the individual will or purpose is
done by the subject or person concerned. To pursue the
example given above, a person subdues his or her own
criminal tendency when he or she sees that those who
violate the laws of society are punished for their
wrongdoings.

- Altruistic levers. This type of levers are directed to the

benevolent or generous interests of the members of society.
 In the feeling of duty, there are certain responsibilities and
tasks enjoined on the individual members of society so that
the conditions of social living can be realized or
accomplished.
 In the lever of feeling of goodwill, the purposes of society
are served by the love of family and the love of country.
Thus, solidarity and patriotism are outward forms of the
altruistic lever of feeling of goodwill.

B. Value of the Utility Supplement

- The principles of utilitarian ethics are applicable to and of good use in
legal theory, especially the development and thrust of the law. Both
individual interests and collective purposes should become the end or
object of the science and art of legislation.

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o The science of legislation is the knowledge of the good for the

community.
o The art of legislation is finding ways and means to realize or
accomplish that good.
- The principle of utilitarianism has been applied in the field of human
rights.
o Bentham: that equality is one of the main aspects of law and in
reviving the importance not only of the right to life, personality and
dignity but also the collective purpose in the conservation of
human resources.
o Jhering's social utilitarianism sought a balance between individual
interests and the purposes of society, which Roscoe Pound later
developed into a theory of social engineering of the conflicting or
overlapping interests. Jhering's classification of purposes into
individual, political and social was also Pound's basis for his theory
of social interests in which he identified and labeled the generic
interests of society.

8. The Hegelian Concept

- Georg Frederich Hegel (1770-1831) took a somewhat different direction in
the study of the problem of the nature of law. Hegel stated his basic
premise that "the law is the product of an evolutionary process." But
unlike Savigny's concept of the volksgeist as the basis of the evolutionary
process of the law, Hegel's evolutive process appears in a dialectic pattern
that has two elements whose struggle between them is either wholly or
partially settled or reconciled by the synthesis of the contending views:
o Thesis
o Antithesis
- Principle of Identity. It states that "all that is rational is real and what is
real is rational." By this Hegel means that nothing is real or actual unless
it is intelligible or rational as well. Thus, anything which is intelligible is
actual and anything that is actual is intelligible. The principle of identity
seeks the reconciliation of opposite views or ideas.
- Hegel held that all concepts are actualized by this dialectic movement, that
is to say a concept (thesis) may evoke an opposite idea (antithesis) and out
of their reconciliation or identification emerges a new concept (synthesis).
The synthesis becomes the prevailing idea or view of the times until an
opposite antithesis appears and reconciliation or identification of the
competing ideas or views is again necessary.

9. The Neo-Hegelian Twist

- The Neo-Hegelians skillfully used Hegel's concept as the basis of their
theory of law-power in the hands of the party-state, where there is no
separation of the powers of government.

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- This distorted interpretation of Hegel's philosophy of law and state made a

very strong appeal to socialists, like Karl Marx and Nicolai Lenin. Marx saw
immediately the thesis and antithesis in contemporary society, that is to say
bourgeois and proletariat. Marx used Hegel's dialectic idealism and came up
with his (Marx) own philosophy of dialectic materialism, that is to say the
withering away of the bourgeois social and legal orders and the emergence
of the dictatorship of the proletariat.

10. Modem Teleological Analysis

A. Juristic Approach
- Modern teleological jurisprudents, notably Josef Kohler and Sidney Hook,
consider a knowledge of right and wrong or good and evil that is relative
to the changing conditions of time, place, and people.

B. Ethical Relativity
- Kohler: "there is no ideal absolute or absolute ideal." There is
simply no absolute formula (e.g., natural law philosophy] to determine
the different aspects of the legal ordering of society. Kohler emphasized
that "legal concepts, including law, have their respective ideal tendencies
not the same tendencies."
o Example: the principle that ignorance of the law excuses no one
from compliance therewith, particularly in crimes mala prohibita,
where intent is immaterial. Should this be tempered with "sound
reason and mercy?" Are not common sense and compassionate
treatment of an offender or adversary changeable values?
 Was this, then, the reason why the principle was not applied
at all in the case of People v. Navarro, involving a thirteen
year old girl who was arrested for selling a tin of cocoa for an
amount eleven centavos more than the ceiling price, while
tending her sister's variety store when the latter was away at
the time?
 And is this the reason, too, why it is wrong to lie but not, it
seems, to deceive the enemy in times of war?
- Sidney Hook posited another direction. For Hook, the criterion of what is
right really depends on what he called the “primary desires” of the
people, which, however, are constantly in flux. The problem "of what is
right and what is wrong” is to be conceived as the equilibration of
interests and their adjustments to environment.

C. Interest of the State

- The interest in the integrity and stability of the state has been considered
the supreme morality or ultimate value of society. This is based on the

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theory that if the state cannot protect its own structure, then it follows
that no subordinate value can be protected.
- The interest of the state has become the cardinal standard or measure of
actions in the legal order, especially with regards to judicial interpretation
and review of cases involving government and governmental problems.
At bottom, when an act or conduct and its consequence are in conformity
with the interest of the state, then they are considered as good and just.
- David Hume posited the view that "reason is and ought only to be the
slave of passions." Reason recognizes utility but passion to be sure
provides the compelling force of all actions. Hume believed that an act or
an idea is either approved or disapproved on the basis of the public
benefit from it. It is obvious that justice in Hume's thinking may or may
not be endowed with fair equality i.e. that which fulfills the interest in the
integrity and stability of the state is justified and will be enforced by its
coercive power, even though it may be unfair in the individual cases.

11. Essential Attributes of the Law

- Greco-Roman-Aquinian viewpoint: right reason in relation to justice and
equity is the essential attribute of the law; the law is considered binding
because it conforms to the precepts of the natural law.
- Utilitarian viewpoint: the greatest happiness of the greatest number in the
community, in terms of both individual and social interests, is the important
attribute of the law; the law is binding because it is useful.
- Modem teleological analysis: the free willing individual in a changing
society stands out as the essential attribute of the law.

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Chapter 4: THE POSITIVIST PERSPECTIVE

1. Seed of Legal Positivism
- Also known as analytical jurisprudence, "positivist jurisprudence"
emphasizes that the law is consciously created by the state. As such, the
law is positive, posited by the authority of the state.
- The seed of legal positivism was planted by Socrates. Plato recorded that
the followers of Socrates sent Crito to help Socrates escape from prison
after he was sentenced to forfeit his life. Socrates refused and told Crito
that while he considered the sentence passed upon him to be unjust and
unfair it was, nevertheless, lawfully rendered and, therefore, he intended
to obey it.

2. The Positivist Approach

There are two important points underlying the positivist approach, both
referring to the question of the separation of law from moral law and from
natural law.

A. Law Not Necessarily a Moral Concept

- John Austin: “With the goodness or badness of the law as tried by the
test of utility or by any of the various tests which divide the opinions of
mankind it has no immediate concern.”
- The law is not necessarily interested in or anxious for the norms of
morality. Moral considerations do not consciously precede the law,
although they may indirectly influence it.
- The relationship between law and morality is only accidental, not direct.
- The principal thrust, then, of the positivists is to keep the legal order
apart from the perplexities of ethics. The legal positivists are persuaded
that the legal order can exist without conscious regard for the norms of
morality, although the latter's influence are not completely denied.

B. Uncluttered by Metaphysical Speculations

- The positivist views the problem of the nature of the law by way of the
empirical sphere of reality - the is - rather than the transcendental
sphere of the ideal - the ought. The teleological idea of a supra positive
law as the standard of validity of positive law is criticized as
"transcendental nonsense." The reason for this critique is that the
precepts of the natural law are vague, for, indeed, their meaning are not
shared in common by everybody.
- The positivist school of jurisprudence has felt all along that it is better to
free the concept of law from metaphysical speculations.

3. Hobbes-Austin Concept
- Hobbes: Before the names of just and unjust can take place, there must be
some coercive power to compel men equally to the performance of their

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covenants. Laws are the rules of just and unjust, nothing being reputed
unjust that is not contrary to some law. The "sovereign is not subject to the
laws for having the power to make and repeal laws, he may, when he
pleases, free himself from their subjection." All that is done by such power
is warranted and owned by everyone of the people, and that which every
man will have so, no man can say is unjust.

- Austin: But to proclaim generally that all laws which are contrary to the
natural law are void and not to be tolerated is to preach anarchy, hostile
and pernicious as much to the wise and benign rule as to stupid and galling
tyranny. His aversion to the philosophy of the natural law is based on the
view that the “ought” is really non-existent. The actualization or realization
of that which ought to be results only in its own cancellation.

4. Legal Positivism
- Austin insists, even though impatiently and rigidly, that there is a clear-cut
distinction between law and morals and between law and natural law, as
follows: “the confusion of them under a common name and the consequent
tendency to confound law and morals and law and natural law is one prolific
source of jargon, darkness and perplexity.”
- In the perspective of positivist jurisprudence, legal rules can be sound or
silly, good or bad, so long as their silliness or badness is general in scope,
that such rules affect all persons belonging to a particular class.
- If moral considerations do not consciously precede the law how, then, can it
merit obedience? John Austin made it abundantly clear that positive law
does not exist in a vacuum simply because of the separation of positive law
from moral law and natural law. Positive law has a criterion or test of its
own, namely, the philosophy of legal positivism which rests on the triune
concepts of sovereign, command and sanction.

5. The Pure Positive Law Response

Positivist jurisprudents insist that nothing is immoral or amoral that is legal.
But the critics reply that the philosophy of legal positivism has not quite
succeeded in separating law from the norms of moral law and from the
precepts of natural law.

A. Lausanne Brand
- Ernest Roguin felt very strongly that the answer to the problem of the
validity of positive law lies in pure juridical science consistent with the
culture of the people.

B. Vienna Brand
- Pure positive law, according to Hans Kelsen (1881-1953) considers only
human norms, not norms coming from other superhuman sources" and
that "it does not try to consider the law as the offspring of moral law and

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natural law, as a human child of a divine parent. He posits the idea that
the concept of law has no moral connotations whatsoever.

(1) Purification of Positive Law

- Hans Kelsen states that the nature of the law must be presented
empirically, that is to say it must stand on its own merit without
make-up of axiological ideas, and that the law must not be politicized
because in the clash of diverse political values it is the law that is
compromised and invariably loses its power as a means of social
control.

(2) Normative Legal Order

- With this methodology, Hans Kelsen postulates the nature of pure
positive law as a hierarchy of noncontradictory norms finding their
force, influence and validity on the grand, unchallengeable norm. This
means that the nature of law “is not simply a system of coordinated
norms of equal level but a hierarchy of norms of different levels.”
- The pure positive law of Hans Kelsen is different from Hobbes' and
Austin's theory of the nature of the law as the will of the sovereign or
supreme political superior.
o For Kelsen, Hobbes' and Austin's view is not a juristic concept but a
psychological one. For Hobbes and Austin, compliance with the will
of the state depends on the feeling of awe and fear.
o But for Kelsen, psychological compulsion is not a specific element
of pure positive law. There are other norms of conduct which carry
the same kind of compulsion but they are not legal norms.
o Kelsen posits the view that obedience to legal norms depends on
the pure fact of coercion and not on any subjective influence on
human behavior.

(3) Empirical Justice

- Kelsen was after justice that is "real and possible." And, in relation to
the legal ordering of society, justice is real and possible when it ls
appropriate to the evil which society has a right to avoid in the first
place. Thus, when the legal norm or the sanction is appropriate or
suitable to the problem involved, then justice is real and possible in a
way satisfactory to all resulting in social contentment.

6. The Law and the State

- In the legal positivism of Thomas Hobbes and John Austin, the state is
perceived as the creator and enforcer of the law with the power to inflict
evil or pain in case its desires are disregarded. This does not mean that
the state can do no wrong in the expression of its will. It only means that
no right can be claimed against the state which it has not previously
accepted.

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- In Hans Kelsen's pure positive law the personification of the state is

avoided by considering the state and the law as one for the reason that
within one nation only one and not two compelling orders can be valid at
the same time.

7. The Supreme Political Superior

- From the concept of the law advocated by the positivist jurisprudence,
the state as the collective legal association under the rule of the majority
is the supreme political superior – which gave rise to the non-suability of
the state.
- Not absolute supremacy. When the exercise of power delegated to the
government is a deliberate and persistent disregard of the will of the
supreme political superior, then such adverse governmental challenge
can be blunted, curbed, or even denied by the response of the majority
of the members of society.
o Peaceable Type – electoral response
o Uprooting Type – revolutionary response

8. Essential Attributes of the Law

A. Conscious Formulation
- As a conscious exercise of authority, the rule (Austin's term) or norm
(Kelsen's term) is separate from morals. This element sets apart a legal
obligation from a moral obligation. In the case of a rule or norm of
positive morality, there is no conscious articulation to lay it down as
such.
- The obligations provided in Article 1423 of the Civil Code of the
Philippines are good examples of moral obligations. They fall short of the
principle of pacta sunt servanda. There is no cause of action to enforce
their performance. However, when they are voluntarily performed they
cannot be undone anymore even on the claim that there is no legal
consideration for their performance.

B. Generality
- The rule or norm must not be in the particular form for that would be
determinative only of specific acts, persons, or things. The rule or norm
must be general, it must prescribe courses of conduct for all members of
society or for all in a particular class.

C. Authoritative Enforcement
- As a rule or norm backed by the authority of the state, the law involves a
duty to obey. In the event that the command is disregarded, then the
sanctions are applied or the incentives withheld.

9. Conflict with the Historical View

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- The view that the law is consciously set or formulated by the supreme
political superior and enforced by sanctions or incentives or both has led the
positivist school of jurisprudence to look askance at the historical
perspective of the law. For the positivist school, customs and customary
modes of decisions are atypical examples of positive law. For the positivists,
the law is simply the conscious creation of the supreme political superior.
- From the perspective of legal positivism, the historical view that the law
emanates from the life and spirit of the people is ambiguous, especially
when the element of time is taken into consideration. A legal rule, for
example, cannot simply exist before the happening or occurrence of the
facts it purports to cover or govern. For the positivists, a legal rule is
created consciously after the occurrence of the act or event in the future.
- The conflict on this particular issue is more imaginary than real. This may be
eliminated by simply tracing a legal rule back to its simple beginnings. The
development of a legal rule or concept is visible even in retrospect. The
obvious way to deal with the conflict is to trace the rule or concept back to
its simple beginning. It is even possible that in the process the rule or
concept may be found to have been borrowed or transplanted from another
legal system.

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Chapter 5: THE FUNCTIONAL PERSPECTIVE

1. Labels
2. Background of Legal Theory
3. Reaction to Idealist and Positivist Perspectives
A. Criticism of Abstract Values
B. Criticism of Legal Positivism
4. Recognition of the Interests of Society
5. Core of Functional Jurisprudence
6. Essential Factor in the Legal Ordering of Society
7. Functional Concept of Law
8. Presentation of Conflicting or Overlapping Interests
9. Relative Weight of Competing Interests
10. Social Interests and National Policies
A. Extra-Legal Factors
B. Types of Interests
C. Means of Securing Private Interests
D. Means of Securing Public Interests
11. Categories of Social Interests
A. Social Interest in the General Security
B. Social Interest in the Maintenance and Protection of Social
Institutions
(1) Domestic Institution
(2) Religious Institution
(3) Political Institution
(4) Economic Institution
C. Social Interest in the General Morals
D. Social Interest in the Conservation of Human Resources
E. Social Interest in the Conservation of Natural Resources
F. Social Interest in the General Health
G. Social Interest in Human Personality and Dignity
H. Social Interest in the Social Life
I. Social Interest in the General Progress
(1) Cultural Progress
(2) Moral Progress
(3) Economic Progress
(4) Political Progress
J. Social Interest in the General Aesthetics
12. Adjustment of Conflicting Interest
13. Value of Functional Jurisprudence

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Chapter 6: THE MODERN LEGAL REALIST PERSPECTIVE

1. Labels
2. Legal Realism as a Distinct Juristic School
3. Judicial Legal Realism
A. Intellectual Forbears
(1) Human Law and Human Experiences
(2) Separation of Law from Its Sources
B. Constructive Skeptics
(1) Rule Skeptics
(2) Fact Skeptics
(3) Opinion Skeptics
C. Role of Material Facts
D. Role of Experience and Social Advantage
E. Role of Metalegal Stimuli
(1) Fom1alist View
(2) Modern Realist View
(3) Metalegal Factors
(a) Stimulus Set by the Witnesses
(b)Stimulus Set by the Lawyers
(c) Stimulus Set by the Judges' Legal Attitudes and Prejudices
(d)Stimulus Set by the Judges' Predilections and Preconceptions
(e) Stimulus Set by Historical Events and Political Precedents
(f) Stimulus Set by Current Social Values and Economic Postulates
F. The Law as the Product of the Judicial Process
G. Exclusion of Legislative and Executive Actions
H. The Adjudicative Process as the Prime Mover
I. The Law and its Purpose
4. Social Legal Realism
A. Source of Law
B. End or Purpose of Law
C. Application of Law
5. Critical Legal Realism
A. Critical Legal Realism Scorned
B. Polemics Against Critical Legal Realism
C. Deconstruction of Dominant Liberal Paradigm
(1) Trashing the Tradition of the Dominant Liberal Paradigm
(2) Internal Reformulation of the Dominant Liberal Paradigm
(a) Rationale and Justification for the Censure
(i) The Rule of Law
(ii) Separation of Governmental Powers
(iii) Objectivism and Formalism
(iv) Judicial Activism
(v) Idealistic and Cynical Concepts of Democracy
(b)Transformation of Liberal Legal Order

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(i) Basic Equality

(ii) Democratic Republicanism
D. Transformative Context of the Post-Liberal Order
(1) Decentralization of Government
(2) Reorganization of Market Economy
(3) Reconstruction of System of Rights
E. Nature and Function of Law
6. Psychological Legal Realism
A. Critique of Judicial Legal Realism
B. Critique of Legal Ideology
C. Nature of Law
D. Basic Jural Relations

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Chapter 7: THE POLICY SCIENCE PERSPECTIVE

1. The Yale Approach
2. Policy Science Jurisprudence
A. Reaction to Apathy Towards Social Values
B. Movement Away from Ontological Jurisprudence
C. Emphasis on Human Rights
D. Movement for the Universal Recognition of Social Values
3. The Policy Process and Problems About Values
4. The Social Value “Power"
A. Forms of Authority and Facts of Control
B. Aspects and Referents
5. The Social Value “Knowledge"
A. Purposive Forms
(1) General Aspect
(2) Particular Aspect
B. Tendential Functions
6. The Social Value “Respect"
A. Regard for Life and Limb
B. Regard for Human Personality
(1) Positive Phase
(2) Negative Phase
7. The Social Value “Income"
A. General Aspect
(1) Freedom from Want
(2) Conservation of Natural Resources
B. Particular Aspect
(1) Immediate Necessities
(2) Immediate Comforts
8. The Social Value "Safety"
A. Public Protection
B. Public Health
C. Social Security
D. Peace and Order
9. The Social Value "Liberty”
A. Relative Nature
B. Purposive Affirmation
C. Forms
D. Tension or Problem Area
E. Constituent Parts
(1) Personal Liberty
(2) Religious Liberty
(3) Civil Liberty
(4) Political Liberty
(5) Economic Liberty

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(6) National Liberty

F. Paradoxes of Effective Liberty
10. The Social Value "Equality"
A. Negative Aspect
(1) Jural Inequality
(2) Invalid View of Equality
B. Positive Aspect
C. Constituent Parts
(1) Equality and Balance Before the Law
(a) Simple Type
(b)Distributive Type
(2) Equality and Balance of Opportunity
(3) Equality and Balance of Rights and Freedoms
(4) Equality and Balance of Political Value
11. The Overarching Social Value
12. Concept of Law
13. Importance of the Policy Science Concept
14. End in View

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John Rawls • 4. Justice as Fairness: Justice within a Liberal Society
First published Tue Mar 25, 2008; substantive revision Mon Apr 12, 2021
o 4.1 The Basic Structure of Society
John Rawls (b. 1921, d. 2002) was an American political philosopher in the
liberal tradition. His theory of justice as fairness describes a society of free o 4.2 Two Guiding Ideas of Justice as Fairness
citizens holding equal basic rights and cooperating within an egalitarian
o 4.3 The Two Principles of Justice as Fairness
economic system. His theory of political liberalism explores the legitimate
use of political power in a democracy, and envisions how civic unity might o 4.4 The Conception of Citizens
endure despite the diversity of worldviews that free institutions allow. His
writings on the law of peoples set out a liberal foreign policy that aims to o 4.5 The Conception of Society
create a permanently peaceful and tolerant international order.
o 4.6 The Original Position
• 1. Life and Work o 4.7 The Argument from the Original Position: The Selection
• 2. Aims and Method of Principles

o 2.1 Four Roles of Political Philosophy o 4.8 The Argument from the Original Position: The Check for
Stability
o 2.2 The Sequence of Theories
o 4.9 Just Institutions: The Four-Stage Sequence
o 2.3 Ideal and Non-Ideal Theory
o 4.10 The Original Position and Political Constructivism
o 2.4 Reflective Equilibrium
• 5. The Law of Peoples: Liberal Foreign Policy
o 2.5 The Independence of Moral and Political Theory
o 5.1 The International Basic Structure and the Principles of
• 3. Political Liberalism: Legitimacy and Stability within a Liberal
the Law of Peoples
Society
o 5.2 Peoples: Liberal and Decent
o 3.1 Legitimacy: The Liberal Principle of Legitimacy
o 5.3 International Toleration and Human Rights
o 3.2 Reasonable Citizens
o 5.4 The International Original Position
o 3.3 Reasonable Pluralism and the Public Political Culture
o 5.5 Non-Ideal Theory: Outlaw States and Burdened
o 3.4 Political Conceptions of Justice
Societies
o 3.5 Stability: An Overlapping Consensus
o 5.6 Reconciliation and Realistic Utopia
o 3.6 Public Reason

Page 1 of 25
 • 6. Further Reading
• Bibliography
o Works by Rawls Cited in this Entry
o Secondary Sources
• Academic Tools
• Other Internet Resources
• Related Entries
1. Life and Work
Rawls was born and raised in Baltimore, Maryland. His father was a
prominent lawyer, his mother was a chapter president of the League of
Women Voters. Rawls studied at Princeton and Cornell, where he was
influenced by Wittgenstein’s student Norman Malcolm; and at Oxford, where
he worked with H. L. A. Hart, Isaiah Berlin, and Stuart Hampshire. His first
professorial appointments were at Cornell and MIT. In 1962 Rawls joined
the faculty at Harvard, where he taught for more than thirty years.
Rawls’s adult life was a scholarly one: its major events occurred within his
writings. The exceptions were two wars. As a college student, Rawls wrote
an intensely religious senior thesis (BI) and had considered studying for the
priesthood. Yet Rawls lost his Christian faith as an infantryman in World War
II on seeing the capriciousness of death in combat and learning of the
horrors of the Holocaust. Then in the 1960s, Rawls spoke out against the
draft for the Vietnam war because it discriminated against black and poor
Americans. The Vietnam conflict impelled Rawls to analyze the defects in
the American political system that led it to prosecute so ruthlessly what he
saw as an unjust war, and to consider how citizens could conscientiously
resist their government’s aggressive policies.
Rawls’s most discussed work is his theory of a just liberal society,
called justice as fairness. Rawls first set out justice as fairness in systematic
detail in his 1971 book, A Theory of Justice. Rawls continued to rework
justice as fairness throughout his life, restating the theory in Political
Liberalism (1993), The Law of Peoples (1999), and Justice as
Fairness (2001).
This entry reflects Rawls’s final statement of his views on justice as fairness,
as well as on political liberalism and on the law of peoples. Some recent
scholarship on Rawls’s work can be found in Further Reading below.
2. Aims and Method
2.1 Four Roles of Political Philosophy
Rawls sees political philosophy as fulfilling at least four roles in a society’s
public culture. The first role is practical: philosophy can propose grounds for
reasoned agreement when sharp political divisions threaten to lead to
violent conflict. Rawls cites Hobbes’s Leviathan as an attempt to solve the
problem of order during the English civil war, Locke’s Letter on Toleration as
responding to the Wars of Religion, as well as the philosophy that emerged
from the debates over the US Constitution, and from debates over the
extension of slavery before the American civil war.
A second role of political philosophy is to help citizens to orient themselves
within their own social world. Philosophy can meditate on what it is to be a
member of a certain society—in a democracy, an equal citizen—and offer a
unifying framework for answering divisive questions about how people with
that political status should relate to each other.
A third role is to probe the limits of political possibility. Political philosophy
must describe workable political arrangements that can gain support from
real people. Yet within these limits, philosophy can be utopian: it can depict
a social order that is the best that we can hope for. Given humans as they
are, philosophy imagines laws as they might be.
A fourth role of political philosophy is reconciliation: “to calm our frustration
and rage against our society and its history by showing us the way in which
its institutions… are rational, and developed over time as they did to attain
their present, rational form” (JF, 3). Philosophy can show that human life is
not simply domination and cruelty, prejudice, folly and corruption; but that,
at least in some ways, it is better that it has become as it is.
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Rawls views his own work as a practical contribution to resolving the long-
standing tension in democratic thought between liberty and equality, and to
limning the limits of civic and of international toleration. He offers the
members of democratic countries a way of understanding themselves as
free and equal citizens of a society that is fair to all, and he describes a
hopeful vision of a stably just constitutional democracy doing its part within
a peaceful international community. To individuals who are frustrated that
their fellow citizens and fellow humans do not see the whole truth as they
do, Rawls offers the reconciling thought that this diversity of worldviews
results from, and can support, a social order with greater freedom for all.
2.2 The Sequence of Theories
In contrast to the utilitarian, for Rawls political philosophy is not simply
applied moral philosophy. The utilitarian holds to one universal moral
principle (“maximize utility”), which she applies to individual actions, political
constitutions, international relations, and all other subjects as required.
Rawls has no universal principle: “The correct regulative principle for
anything,” he says, “depends on the nature of that thing” (TJ, 29). Rawls
confines his theorizing to the political domain, and within this domain he
holds that the correct principles for each sub-domain depend on its
particular agents and constraints.
Rawls covers the domain of the political by addressing its sub-domains in
sequence. The first sub-domain that he addresses is a self-contained
democratic society reproducing itself across generations. Once principles
are in place for such a society, Rawls moves to a second sub-domain: a
society of nations, of which this democratic society is a member. Rawls
suggests (though he does not show) that his sequence of theories could
extend to cover further sub-domains, such as human interactions with
animals. Universal coverage will have been achieved once this sequence is
complete, each sub-domain having received the principles appropriate to it.
2.3 Ideal and Non-Ideal Theory
Within each sub-domain of the political Rawls also follows a sequence: ideal
theory before non-ideal theory. Ideal theory makes two types of idealizing
assumptions about its subject matter. First, ideal theory assumes that all
actors (citizens or societies) are generally willing to comply with whatever
principles are chosen. Ideal theory thus idealizes away the possibility of law-
breaking, either by individuals (crime) or societies (aggressive war).
Second, ideal theory assumes reasonably favorable social conditions,
wherein citizens and societies are able to abide by principles of political
cooperation. Citizens are not so driven by hunger, for example, that their
capacity for moral reasoning is overwhelmed; nor are nations struggling to
overcome famine or the failure of their states.
Completing ideal theory first, Rawls says, yields a systematic understanding
of how to reform our non-ideal world, and fixes a vision (mentioned above)
of what is the best that can be hoped for. Once ideal theory is completed for
a political sub-domain, non-ideal theory can be set out by reference to the
ideal. For instance, once we find ideal principles for citizens who can be
productive members of society over a complete life, we will be better able to
frame non-ideal principles for providing health care to citizens with serious
illnesses or disabilities. Similarly, once we understand the ideal principles of
international relations, we will better see how the international community
should act toward failed states, as well as toward aggressive states that
threaten the peace.
2.4 Reflective Equilibrium
The aim of political philosophy is to reach justified conclusions about how
political life should proceed. For Rawls, how justified one is in one’s political
convictions depends on how close one is to achieving reflective equilibrium.
In reflective equilibrium all of one’s beliefs, on all levels of generality, cohere
perfectly with one another.
Thus, in reflective equilibrium one’s specific political judgments (e.g.,
“religious intolerance is unjust,” “racial discrimination is unjust”) support
one’s more general political convictions (e.g., “all citizens have certain basic
rights”) which support one’s very abstract beliefs about the political world
(e.g., “all citizens are free and equal”). Viewed from the opposite direction,
in reflective equilibrium one’s abstract beliefs explain one’s more general
convictions, which in turn explain one’s specific judgments. Were one to
attain reflective equilibrium, the justification of each belief would follow from
all beliefs relating in these networks of mutual support and explanation.
Though perfect reflective equilibrium is unattainable, one can use
the method of reflective equilibrium to get closer to it and so increase the
justifiability of one’s beliefs. In carrying through this method, one begins with
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one’s considered moral judgments: those made consistently and without
hesitation when one is under good conditions for thinking (e.g., “slavery is
wrong,” “all citizens are political equals”). One treats these considered
judgments as provisional fixed points, and then starts the process of
bringing one’s beliefs into relations of mutual support and explanation as
described above. Doing this inevitably brings out conflicts where, for
example, a specific judgment clashes with a more general conviction, or
where an abstract principle cannot accommodate a particular kind of case.
One proceeds by revising these beliefs as necessary, striving always to
increase the coherence of the whole.
Carrying through this process of mutual adjustment brings one closer
to narrow reflective equilibrium: coherence among one’s initial beliefs. One
then adds to this narrow equilibrium one’s responses to the major theories
in the history of political philosophy, as well as one’s responses to theories
critical of political philosophizing as such. One continues to adjust one’s
scheme of beliefs as one reflects on these alternatives, aiming for the end-
point of wide reflective equilibrium, in which coherence is maintained after
many alternatives have been considered.
Because of its emphasis on coherence, reflective equilibrium is often
contrasted with foundationalism as an account of justified belief. Within
foundationalist approaches, some subset of beliefs is considered to be
unrevisable, thereby serving as a foundation on which all other beliefs are
to be based. Reflective equilibrium privileges no such subset of beliefs: any
belief at any level of generality is subject to revision, if revision will help to
bring one’s considered convictions into greater coherence overall.
2.5 The Independence of Moral and Political Theory
In working toward greater reflective equilibrium, any type of belief can in
principle be relevant to one’s conclusions about how political institutions
should be arranged. Metaphysical beliefs about free will or personal identity
might be relevant, as could epistemological beliefs about how we come to
know what moral facts there are. However, while this is correct in principle,
Rawls holds that in practice productive moral and political theorizing will
proceed to a large extent independent of metaphysics and epistemology.
Indeed, as a methodological presumption Rawls reverses the traditional
order of priority. Progress in metaethics will derive from progress in
substantive moral and political theorizing, instead of (as often assumed) vice
versa (CP, 286–302).
Rawls’s own metaethical theory of the objectivity and validity of political
judgments, political constructivism, will be described below, after the
substantive political theory from which it emerges.
3. Political Liberalism: Legitimacy and Stability within a Liberal Society
In a free society, citizens will have disparate worldviews. They will believe
in different religions or none at all; they will have differing conceptions of
right and wrong; they will disagree on how to live and on what relationships
to value. Citizens will have contrary commitments, yet within any country
there can only be one law. The law must either establish a national church,
or not; women must either have equal rights, or not; abortion and gay
marriage must either be permissible, or not; the economy must be set up in
one way or another.
Rawls holds that the need to impose a unified law on a diverse citizenry
raises two fundamental challenges. The first is the challenge of legitimacy:
the legitimate use of coercive political power. How can it be legitimate to
coerce all citizens to follow just one law, given that citizens will inevitably
hold divergent worldviews?
The second challenge is the challenge of stability, which looks at political
power from the receiving end. Why would a citizen willingly obey a law that
is imposed on her by a collective body whose members have beliefs and
values so different to her own? Yet unless most citizens willingly obey the
law, no social order can be stable for long.
Rawls answers these challenges of legitimacy and stability with his theory
of political liberalism. Political liberalism is not yet Rawls’s theory of justice
(justice as fairness). Political liberalism answers the conceptually prior
questions of legitimacy and stability, so fixing the context and starting points
for justice as fairness.
3.1 Legitimacy: The Liberal Principle of Legitimacy
In a democracy, political power is always the power of the people as a
collective body. In light of the diversity within a democracy, what would it
mean for citizens legitimately to exercise coercive political power over one
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another? Rawls’s test for the acceptable use of political power in a
democracy is his liberal principle of legitimacy:
Our exercise of political power is fully proper only when it is exercised in
accordance with a constitution the essentials of which all citizens as free
and equal may reasonably be expected to endorse in the light of principles
and ideals acceptable to their common human reason (PL, 137).
According to this principle, political power may only be used in ways that all
citizens can reasonably be expected to endorse. The use of political power
must fulfill a criterion of reciprocity: citizens must reasonably believe that all
citizens can reasonably accept the enforcement of a particular set of basic
laws. Those coerced by law must be able to endorse the society’s
fundamental political arrangements freely, not because they are dominated
or manipulated or kept uninformed.
The liberal principle of legitimacy intensifies the challenge of legitimacy: how
can any particular set of basic laws legitimately be imposed upon a
pluralistic citizenry? What constitution could all citizens reasonably be
expected to endorse? Rawls’s answer to this challenge begins by explaining
what it means for citizens to be reasonable.
3.2 Reasonable Citizens
Reasonable citizens want to live in a society in which they can cooperate
with their fellow citizens on terms that are acceptable to all. They are willing
to propose and abide by mutually acceptable rules, given the assurance that
others will also do so. They will also honor these rules, even when this
means sacrificing their own particular interests. Reasonable citizens want,
in short, to belong to a society where political power is legitimately used.
Each reasonable citizen has her own view about God and life, right and
wrong, good and bad. Each has, that is, what Rawls calls her
own comprehensive doctrine. Yet because reasonable citizens are
reasonable, they are unwilling to impose their own comprehensive doctrines
on others who are also willing to search for mutually agreeable rules.
Though each citizen may believe that she knows the truth about the best
way to live, none is willing to force other reasonable citizens to live according
to her beliefs, even if she belongs to a majority that has the power to enforce
those beliefs on everyone. After all, Rawls says mentioning the Inquisition,
oppressive use of state power will be necessary to unite a society around
any comprehensive doctrine, including the comprehensive liberalism of
Kant or Mill (PL, 37).
One reason that reasonable citizens are so tolerant, Rawls says, is that they
accept a certain explanation for the diversity of worldviews in their society.
Reasonable citizens accept the burdens of judgment. The deepest
questions of religion, philosophy, and morality are very difficult to think
through. Even conscientious people will answer these questions in different
ways, because of their particular life experiences (their upbringing, class,
occupation, and so on). Reasonable citizens understand that these deep
issues are ones on which people of good will can disagree, and so will be
unwilling to impose their own worldviews on those who have reached
conclusions different than their own.
3.3 Reasonable Pluralism and the Public Political Culture
Rawls’s account of the reasonable citizen highlights his view of human
nature. Humans are not irredeemably self-centered, dogmatic, or driven by
what Hobbes called, “a perpetual and restless desire of power after power”
(1651, 58). Humans have at least the capacity for genuine toleration and
mutual respect.
This human capacity raises the hope that the diversity of worldviews in a
democratic society may represent not merely pluralism, but reasonable
pluralism. Rawls hopes, that is, that the religious, moral, and philosophical
doctrines that citizens accept will themselves endorse toleration and accept
the essentials of a democratic regime. In the religious sphere, for example,
a reasonable pluralism might contain a reasonable Catholicism, a
reasonable interpretation of Islam, a reasonable atheism, and so on. Being
reasonable, none of these doctrines will advocate the use of coercive
political power to impose religious conformity on citizens with different
beliefs.
The possibility of reasonable pluralism softens but does not solve the
challenge of legitimacy: how one law can legitimately be imposed on diverse
citizens. For even in a society of reasonable pluralism, it would be
unreasonable to expect everyone to endorse, say, a reasonable Catholicism
as the basis for a constitutional settlement. Reasonable Muslims or atheists
cannot be expected to endorse Catholicism as setting the basic terms for
social life. Nor, of course, can Catholics be expected to accept Islam or
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atheism as the fundamental basis of law. No comprehensive doctrine can
be accepted by all reasonable citizens, and so no comprehensive doctrine
can serve as the basis for the legitimate use of coercive political power.
Yet where else then to turn to find the ideas that will define society’s most
basic laws, which all citizens will be required to obey? For Rawls, there is
only one source of fundamental ideas that can serve as a focal point for all
reasonable citizens of a liberal society. This is the society’s public political
culture.
Since justification is addressed to others, it proceeds from what is, or can
be, held in common; and so we begin from shared fundamental ideas
implicit in the public political culture in the hope of developing from them a
political conception that can gain free and reasoned agreement in judgment
(PL, 100–01).
The public political culture of a democratic society, Rawls says, “comprises
the political institutions of a constitutional regime and the public traditions of
their interpretation (including those of the judiciary), as well as historic texts
and documents that are common knowledge” (PL, 13–14). Rawls looks to
fundamental ideas implicit, for example, in the constitution’s list of individual
rights, in the design of the society’s government, and in the historic
decisions of important courts. These fundamental ideas from the public
political culture can be crafted into a shared political conception of justice.
3.4 Political Conceptions of Justice
Rawls’s solution to the challenge of legitimacy in a liberal society is for
political power to be exercised in accordance with a political conception of
justice. A political conception of justice is an interpretation of the
fundamental ideas implicit in that society’s public political culture.
A political conception is not derived from any particular comprehensive
doctrine, nor is it a compromise among the worldviews that happen to exist
in society at the moment. Rather, a political conception is freestanding: its
content is set out independently of the comprehensive doctrines that citizens
affirm. Reasonable citizens, who want to cooperate with one another on
mutually acceptable terms, will see that a freestanding political conception
generated from ideas in the public political culture is the only basis for
cooperation that all citizens can reasonably be expected to endorse. The
use of coercive political power guided by the principles of a political
conception of justice will therefore be legitimate.
The three most fundamental ideas that Rawls finds in the public political
culture of a democratic society are that citizens are free and equal, and that
society should be a fair system of cooperation. All liberal political
conceptions of justice will therefore be centered on interpretations of these
three fundamental ideas.
Because there are many reasonable interpretations of “free,” “equal” and
“fair,” there will be many liberal political conceptions of justice. Since all the
members of this family interpret the same three fundamental ideas,
however, all liberal political conceptions of justice will share certain basic
features:
1. A liberal political conception of justice will ascribe to all citizens
familiar individual rights and liberties, such as rights of free
expression, liberty of conscience, and free choice of occupation;
2. A political conception will give special priority to these rights and
liberties, especially over demands to further the general good (e.g.,
to increase national wealth) or perfectionist values (e.g., to promote
a particular view of human flourishing);
3. A political conception will assure for all citizens sufficient all-purpose
means to make effective use of their freedoms.
These abstract features must, Rawls says, be realized in certain kinds of
institutions. He mentions several demands that all liberal conceptions of
justice will make on institutions: a decent distribution of income and wealth;
fair opportunities for all citizens, especially in education and training;
government as the employer of last resort; basic health care for all citizens;
and public financing of elections.
The use of political power in a liberal society will be legitimate if it is
employed in accordance with the principles of any liberal conception of
justice. By Rawls’s criteria, a libertarian conception of justice (such as
Nozick’s in Anarchy, State, and Utopia) is not a liberal political conception
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of justice. Libertarianism does not assure all citizens sufficient means to
make use of their basic liberties, and it permits excessive inequalities of
wealth and power. By contrast, Rawls’s own conception of justice (justice
as fairness) does qualify as a member of the family of liberal political
conceptions of justice.
3.5 Stability: An Overlapping Consensus
Political power is used legitimately in a liberal society when it is used in
accordance with a political conception of justice. Yet the challenge of
stability remains. Legitimacy means that the law may be enforced, but Rawls
still needs to explain why citizens are willing to abide by it. If citizens do not
believe that they have reasons to abide by the law from within their own
perspectives, social order may disintegrate.
Rawls places his hopes for social stability on an overlapping consensus. In
an overlapping consensus, citizens all endorse a core set of laws for
different reasons. In Rawlsian terms, each citizen supports a political
conception of justice for reasons internal to her own comprehensive
doctrine.
Recall that the content of a political conception is freestanding: it is specified
without reference to any comprehensive doctrine. This allows a political
conception to be a “module” that can fit into any number of worldviews that
citizens might have. In an overlapping consensus, each reasonable citizen
affirms this common “module” from within her point of view.
Here is an example. The quotation below from the second Vatican Council
of the Catholic Church shows how a particular comprehensive doctrine
(Catholicism) affirms one component of a liberal political conception (a
familiar individual liberty) for its own reasons:
This Vatican Council declares that the human person has a right to religious
freedom. This freedom means that all men are to be immune from coercion
on the part of individuals or of social groups and of any human power, in
such wise that in matters religious no one is forced to act in a manner
contrary to his own beliefs. Nor is anyone to be restrained from acting in
accordance with his own beliefs, whether privately or publicly, whether alone
or in association with others, within due limits. The council further declares
that the right to religious freedom has its foundation in the very dignity of the
human person, as this dignity is known through the revealed Word of God
and by reason itself. This right of the human person to religious freedom is
to be recognized in the constitutional law whereby society is governed and
thus it is to become a civil right. (1965, art. 2)
Catholic doctrine here supports the liberal right to religious freedom for
reasons internal to Catholicism. A reasonable Islamic doctrine, and a
reasonable atheistic doctrine, might also affirm this same right to religious
freedom—not, of course, for the same reasons as Catholic doctrine, but
each for its own reasons. In an overlapping consensus, all reasonable
comprehensive doctrines will support the right to religious freedom, each for
its own reasons. Indeed, in an overlapping consensus, all reasonable
comprehensive doctrines will endorse all of a political conception of justice,
each from within its own point of view.
Citizens within an overlapping consensus work out for themselves how the
liberal “module” fits with their own worldviews. Some citizens may see
liberalism as derived directly from their deepest beliefs, as in the quotation
from Vatican II above. Others may accept a liberal conception as attractive
in itself, but mostly separate from their other concerns. What is crucial is that
all citizens view the values of a political conception of justice as very great
values, which normally outweigh their other values should these conflict on
some particular issue. All citizens, for their own reasons, give the political
conception priority in their reasoning about how their society’s basic laws
should be ordered.
Rawls sees an overlapping consensus as the most desirable form of stability
in a free society. Stability in an overlapping consensus is better than a mere
balance of power (a modus vivendi) among citizens who hold contending
worldviews. After all, power often shifts, and when it does the stability of
a modus vivendi may be lost.
In an overlapping consensus, citizens affirm a political conception
wholeheartedly from within their own perspectives, and so will continue to
do so even if their group gains or loses political power. Rawls says that an
overlapping consensus is stable for the right reasons: each citizen affirms a
moral doctrine (a liberal conception of justice) for moral reasons (as given
by their comprehensive doctrine). Abiding by liberal basic laws is not a
citizen’s second-best option in the face of the power of others; it is each
citizen’s first-best option given her own beliefs.
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Rawls does not assert that an overlapping consensus is achievable in every
liberal society. Nor does he say that, once established, an overlapping
consensus must forever endure. Citizens in some societies may have too
little in common to converge on a liberal political conception of justice. In
other societies, unreasonable doctrines may spread until they overwhelm
liberal institutions.
Rawls does hold that history shows both convergence in beliefs and
deepening trust among citizens in many liberal societies. This gives hope
that an overlapping consensus is at least possible. Where an overlapping
consensus is possible, Rawls believes, it is the best support for social
stability that a free society can achieve.
3.6 Public Reason
Having seen how Rawls answers the challenges of legitimacy and stability,
we can return to legitimacy and its criterion of reciprocity: citizens must
reasonably believe that all citizens can reasonably accept the enforcement
of a particular set of basic laws. It is unreasonable for citizens to attempt to
impose what they see as the whole truth on others—political power must be
used in ways that all citizens may reasonably be expected to endorse. With
his doctrine of public reason, Rawls extends this requirement of reciprocity
to apply directly to how citizens explain their political decisions to one
another. In essence, public reason requires citizens to be able to justify their
political decisions to one another using publicly available values and
standards.
To take a straightforward example: a Supreme Court justice deciding on a
gay marriage law would violate public reason were she to base her opinion
on God’s forbidding gay sex in the book of Leviticus, or on a personal
spiritual revelation that upholding such a law would hasten the end of days.
This is because not all members of society can reasonably be expected to
accept Leviticus as stating an authoritative set of political values, nor can a
religious premonition be a common standard for evaluating public policy.
These values and standards are not public.
Rawls’s doctrine of public reason can be summarized as follows:
Citizens engaged in certain political activities have a duty of civility to
be able to justify their decisions on fundamental political issues by
reference only to public values and public standards.
Each of the highlighted terms in this doctrine can be further elucidated as
follows:
• The public values that citizens must be able to appeal to are the
values of a political conception of justice: those related to the
freedom and equality of citizens, and society as a fair system of
cooperation over time. Among such public values are the freedom
of religious practice, the political equality of women and of racial
minorities, the efficiency of the economy, the preservation of a
healthy environment, and the stability of the family (which helps the
orderly reproduction of society from one generation to the next).
Nonpublic values include values internal to associations like
churches (e.g., that women may not hold the highest offices) or
private clubs (e.g., that racial minorities can be excluded) which
cannot be squared with public values such as these.
• Similarly, citizens should be able to justify their political decisions
by public standards of inquiry. Public standards are principles of
reasoning and rules of evidence that all citizens can reasonably
endorse. So citizens should not justify their political decisions by
appeal to divination, or to complex and disputed economic or
psychological theories. Rather, publicly acceptable standards are
those that rely on common sense, on facts generally known, and on
the conclusions of science that are well established and not
controversial.
• The duty to abide by public reason applies when the
most fundamental political issues are at stake: issues such as
who has the right to vote, which religions are to be tolerated, who
will be eligible to own property, and what are suspect classifications
for discrimination in hiring decisions. These are what Rawls
calls constitutional essentials and matters of basic justice. Public
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 reason applies more weakly, if at all, to less momentous political
questions, for example to most laws that set rates of taxation, or
that put aside public money to maintain national parks.
• Citizens have a duty to constrain their decisions by public reason
only when they engage in certain political activities, usually when
exercising powers of public office. So judges are bound by public
reason when they issue their rulings, legislators should abide by
public reason when speaking and voting in the legislature, and the
executive and candidates for high office should respect public
reason in their public pronouncements. Significantly, Rawls says
that voters should also heed public reason when they vote. All of
these activities are or support exercises of political power, so (by
the liberal principle of legitimacy) all must be justifiable in terms that
all citizens might reasonably endorse. However, citizens are not
bound by any duties of public reason when they engage in other
activities, for example when they worship in church, perform on
stage, pursue scientific research, send letters to the editor, or talk
politics around the dinner table.
• The duty to be able to justify one’s political decisions with public
reasons is a moral duty, not a legal duty: it is a duty of civility. All
citizens always have their full legal rights to free expression, and
overstepping the bounds of public reason is never in itself a crime.
Rather, citizens have a moral duty of mutual respect and civic
friendship not to justify their political decisions on fundamental
issues by appeal to partisan values or controversial standards of
reasoning that cannot be publicly redeemed.
In an important proviso, Rawls adds that citizens may speak the language
of their controversial comprehensive doctrines—even as public officials, and
even on the most fundamental issues—so long as it can be shown that these
assertions appeal to public values. So President Lincoln, for instance, could
legitimately use Biblical imagery to condemn the evil of slavery, since his
condemnations appealed to the public values of freedom and equality. Thus
even within its limited range of application, Rawls’s doctrine of public reason
is rather permissive concerning what citizens may say and do within the
bounds of civility.
4. Justice as Fairness: Justice within a Liberal Society
Justice as fairness is Rawls’s theory of justice for a liberal society. As a
member of the family of liberal political conceptions of justice it provides a
framework for the legitimate use of political power. Yet legitimacy is only the
minimal standard of moral acceptability; a political order can be legitimate
without being just. Justice sets the maximal standard: the arrangement of
social institutions that is morally best.
Rawls constructs justice as fairness around specific interpretations of the
ideas that citizens are free and equal, and that society should be fair. He
sees it as resolving the tensions between the ideas of freedom and equality,
which have been highlighted both by the socialist critique of liberal
democracy and by the conservative critique of the modern welfare state.
Rawls also argues that justice as fairness is superior to the dominant
tradition in modern political thought: utilitarianism.
In Rawls’s egalitarian liberalism, citizens relate to each other as equals
within a social order defined by reciprocity, instead of within the unjust status
hierarchies familiar from today.
Significant political and economic inequalities are often associated with
inequalities of social status that encourage those of lower status to be
viewed both by themselves and by others as inferior. This may arouse
widespread attitudes of deference and servility, on one side, and a will to
dominate and arrogance on the other. These effects of social and economic
inequalities can be serious evils and the attitudes they engender great
vices... Fixed status ascribed by birth, or by gender or race, is particularly
odious (JF, 131).
4.1 The Basic Structure of Society
Justice as fairness aims to describe a just arrangement of the major political
and social institutions of a liberal society: the political constitution, the legal
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system, the economy, the family, and so on. Rawls calls the arrangement of
these institutions a society’s basic structure. The basic structure is the
location of justice because these institutions distribute the main benefits and
burdens of social life: who will receive social recognition, who will have
which basic rights, who will have opportunities to get what kind of work, what
the distribution of income and wealth will be, and so on.
The form of a society’s basic structure will have profound effects on the lives
of citizens. The basic structure will influence not only citizens’ life prospects,
but more deeply their goals, their attitudes, their relationships, and their
characters. Institutions that will have such pervasive influence on people’s
lives require justification. Since leaving one’s society is not a realistic option
for most people, the justification cannot be that citizens have consented to
a basic structure by staying in the country. And since the rules of any basic
structure will be coercively enforced, often with serious penalties, the
demand to justify the imposition of any particular set of rules intensifies
further.
In setting out justice as fairness, Rawls assumes that the liberal society in
question is marked by reasonable pluralism as described above, and also
that it is under reasonably favorable conditions: that there are enough
resources for it to be possible for everyone’s basic needs to be met. Rawls
makes the simplifying assumption that the society is self-sufficient and
closed, so that citizens enter it only by birth and leave it only at death. He
also confines his attention mainly to ideal theory, putting aside non-ideal
theory such as on criminal justice.
4.2 Two Guiding Ideas of Justice as Fairness
Social cooperation in some form is necessary for citizens to be able to lead
decent lives. Yet citizens are not indifferent to how the benefits and burdens
of cooperation will be divided amongst them. Rawls’s principles of justice as
fairness articulate the central liberal ideas that cooperation should be fair to
all citizens regarded as free and as equals. The distinctive interpretation that
Rawls gives to these concepts can be seen as combining a negative and a
positive thesis.
Rawls’s negative thesis starts with the idea that citizens do not deserve to
be born into a rich or a poor family, to be born naturally more or less gifted
than others, to be born female or male, to be born a member of a particular
racial group, and so on. Since these features of persons are morally
arbitrary in this sense, citizens are not entitled to more of the benefits of
social cooperation simply because of them. For example, the fact that a
citizen was born rich, white, and male provides no reason in itself for this
citizen to be favored by social institutions.
This negative thesis does not say how social goods should be distributed; it
merely clears the decks. Rawls’s positive distributive thesis is equality-
based reciprocity. All social goods are to be distributed equally, unless an
unequal distribution would be to everyone’s advantage. The guiding idea is
that since citizens are fundamentally equal, reasoning about justice should
begin from a presumption that cooperatively-produced goods should be
equally divided. Justice then requires that any inequalities must benefit all
citizens, and particularly must benefit those who will have the least. Equality
sets the baseline; from there any inequalities must improve everyone’s
situation, and especially the situation of the worst-off. These strong
requirements of equality and reciprocal advantage are hallmarks of Rawls’s
theory of justice.
4.3 The Two Principles of Justice as Fairness
These guiding ideas of justice as fairness are given institutional form by its
two principles of justice:
First Principle: Each person has the same indefeasible claim to a fully
adequate scheme of equal basic liberties, which scheme is compatible with
the same scheme of liberties for all;
Second Principle: Social and economic inequalities are to satisfy two
conditions:
a. They are to be attached to offices and positions open to all under
conditions of fair equality of opportunity;
b. They are to be to the greatest benefit of the least-advantaged
members of society (the difference principle) (JF, 42–43).
The first principle of equal basic liberties is to be embodied in the political
constitution, while the second principle applies primarily to laws governing
economic institutions. Fulfillment of the first principle takes priority over
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fulfillment of the second principle, and within the second principle fair
equality of opportunity takes priority over the difference principle.
The first principle affirms that all citizens should have the familiar basic rights
and liberties: liberty of conscience and freedom of association, freedom of
speech and liberty of the person, the rights to vote, to hold public office, to
be treated in accordance with the rule of law, and so on. The first principle
accords these rights and liberties to all citizens equally. Unequal rights
would not benefit those who would get a lesser share of the rights, so justice
requires equal rights for all, in all normal circumstances.
Rawls’s first principle confirms widespread convictions about the
importance of equal basic rights and liberties. Two further features make
this principle distinctive. First is its priority: the basic rights and liberties must
not be traded off against other social goods. The first principle disallows, for
instance, a policy that would give draft exemptions to college students on
the grounds that educated civilians will increase economic productivity. The
draft is a drastic infringement on basic liberties, and if a draft is implemented
then all who are able to serve must be equally subject to it, even if this
means slower growth. Citizens’ equal liberty must have priority over
economic policy.
The second distinctive feature of Rawls’s first principle is that it requires fair
value of the political liberties. The political liberties are a subset of the basic
liberties, concerned with the right to hold public office, the right to affect the
outcome of national elections and so on. For these liberties, Rawls requires
that citizens should be not only formally but also substantively equal. That
is, citizens who are similarly endowed and motivated should have similar
opportunities to hold office, to influence elections, and so on regardless of
how rich or poor they are. This requirement of the fair value of the political
liberties has major implications for how elections should be funded and run,
as will be discussed below.
Rawls’s second principle of justice has two parts. The first part, fair equality
of opportunity, requires that citizens with the same talents and willingness
to use them have the same educational and economic opportunities
regardless of whether they were born rich or poor. “In all parts of society
there are to be roughly the same prospects of culture and achievement for
those similarly motivated and endowed” (JF, p. 44).
So, for example, if we assume that natural endowments and the willingness
to use them are evenly distributed across children born into different social
classes, then within any type of occupation (generally specified) we should
find that roughly one quarter of people in that occupation were born into the
top 25% of the income distribution, one quarter were born into the second-
highest 25% of the income distribution, one quarter were born into the
second-lowest 25%, and one-quarter were born into the lowest 25%. Since
class of origin is a morally arbitrary fact about citizens, justice does not allow
class of origin to turn into unequal opportunities for education or meaningful
work.
The second part of the second principle is the difference principle, which
regulates the distribution of wealth and income. Allowing inequalities of
wealth and income can lead to a larger social product: higher wages can
cover the costs of training and education, for example, and can provide
incentives to fill jobs that are more in demand. The difference principle
allows inequalities of wealth and income, so long as these will be to
everyone’s advantage, and specifically to the advantage of those who will
be worst off. The difference principle requires, that is, that any economic
inequalities be to the greatest advantage of those who are advantaged least.
To illustrate, consider four hypothetical economic structures A–D, and the
lifetime-average levels of income that these different economic structures
would yield for representative members of three groups:
Least-Advantaged Middle Most-Advantaged
Economy
Group Group Group
A 10,000 10,000 10,000
B 12,000 30,000 80,000
C 30,000 90,000 150,000
D 20,000 100,000 500,000
Here the difference principle selects Economy C, because it contains the
distribution where the least-advantaged group does best. Inequalities in C
are to everyone’s advantage relative to a completely equal distribution
(Economy A), and relative to a more equal distribution (Economy B). But the
difference principle does not allow the rich to get richer at the expense of
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the poor (Economy D). The difference principle embodies equality-based
reciprocity: from an egalitarian baseline, it requires that any inequalities are
good for all, and especially for the worst-off.
The difference principle is partly based on the negative thesis that the
distribution of natural assets is undeserved. A citizen does not merit more
of the social product simply because she was lucky enough to be born with
the potential to develop skills that are currently in high demand. Yet this
does not mean that everyone must get the same shares. The fact that
citizens have different talents and abilities can be used to make everyone
better off. In a society governed by the difference principle, citizens regard
the distribution of natural endowments as a common asset that can benefit
all. Those better endowed are welcome to use their gifts to make
themselves better off, so long as their doing so also contributes to the good
of those less well endowed.
The difference principle thus expresses a positive ideal, an ideal of social
unity. In a society that satisfies the difference principle, citizens know that
their economy works to everyone’s benefit, and that those who were lucky
enough to be born with greater natural potential are not getting richer at the
expense of those who were less fortunate. One might contrast Rawls’s
positive ideal to Nozick’s ideal of libertarian freedom, or to meritocratic ideas
about economic justice that are dominant within many democracies. “In
justice as fairness,” Rawls says, “men agree to share one another’s fate”
(TJ, 102).
4.4 The Conception of Citizens
Having surveyed Rawls’s two principles of justice as fairness, we can return
to Rawls’s interpretations of the liberal ideas that citizens are free and equal,
and that society should be fair. Rawls uses these conceptions of citizens
and society to construct the official justification for the two principles: the
argument from the original position.
Rawls’s interpretation of the idea that citizens are free is as follows. Citizens
are free in that each sees herself as being entitled to make claims on social
institutions in her own right—citizens are not slaves or serfs, dependent for
their social status on others. Citizens are also free in that they see their
public identities as independent of any particular comprehensive doctrine: a
citizen who converts to Islam, or who recants her faith, will expect, for
example, to retain all her political rights and liberties throughout the
transition. Finally, citizens are free in being able to take responsibility for
planning their own lives, given the opportunities and resources that they can
reasonably expect.
Citizens are equal, Rawls says, in virtue of having the capacities to
participate in social cooperation over a complete life. Citizens may have
greater or lesser skills, talents, and powers “above the line” that cooperation
requires, but differences above this line have no bearing on citizens’ equal
political status.
Rawlsian citizens are not only free and equal, they are also reasonable and
rational. The idea that citizens are reasonable is familiar from political
liberalism. Reasonable citizens have the capacity to abide by fair terms of
cooperation, even at the expense of their own interests, provided that others
are also willing to do so. In justice as fairness, Rawls calls this
reasonableness the capacity for a sense of justice. Citizens are also
rational: they have the capacity to pursue and revise their own view of what
is valuable in human life. Rawls calls this the capacity for a conception of
the good. Together these capacities are called the two moral powers.
Like every theory of justice (for example those of Locke, Rousseau, and
Mill), justice as fairness requires an account of citizens’ fundamental
interests: what citizens need qua citizens. Rawls derives his account
of primary goods from the conception of the citizen as free and equal,
reasonable and rational. Primary goods are essential for developing and
exercising the two moral powers, and are useful for pursuing a wide range
of specific conceptions of the good life. Primary goods are these:
• The basic rights and liberties;
• Freedom of movement, and free choice among a wide range of
occupations;
• The powers of offices and positions of responsibility;
• Income and wealth;
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 • The social bases of self-respect: the recognition by social
institutions that gives citizens a sense of self-worth and the
confidence to carry out their plans (JF, 58–59).
All citizens are assumed to have fundamental interests in getting more of
these primary goods, and political institutions are to evaluate how well
citizens are doing according to what primary goods they have. It is equalities
and inequalities of these primary goods that, Rawls claims, are of the
greatest political significance.
4.5 The Conception of Society
Rawls’s conception of society is defined by fairness: social institutions are
to be fair to all cooperating members of society, regardless of their race,
gender, religion, class of origin, natural talents, reasonable conception of
the good life, and so on.
Rawls also emphasizes publicity as an aspect of fairness. In what he calls
a well-ordered society all citizens accept the principles of justice and know
that their fellow citizens also do so, and all citizens recognize that the basic
structure is just. The full philosophical justifications for the principles of
justice are also knowable by and acceptable to all reasonable citizens.
The idea behind publicity is that since the principles for the basic structure
will be coercively enforced on free citizens, they should stand up to public
scrutiny. The publicity condition requires that a society’s operative principles
of justice not be too esoteric, and not be screens for deeper power relations.
Fairness requires that, in “public political life, nothing need be hidden... there
is no need for the illusions and delusions of ideology for society to work
properly and for citizens to accept it willingly” (PL, 68–69).
4.6 The Original Position
Rawls’s conceptions of citizens and society are still quite abstract, and some
might think innocuous. The original position aims to move from these
abstract conceptions to determinate principles of social justice. It does so
by translating the question: “What are fair terms of social cooperation for
free and equal citizens?” into the question “What terms of cooperation would
free and equal citizens agree to under fair conditions?” The move to
agreement among citizens is what places Rawls’s justice as fairness within
the social contract tradition of Locke, Rousseau, and Kant.
The strategy of the original position is to construct a method of reasoning
that models abstract ideas about justice so as to focus their power together
onto the choice of principles. So Rawls’s conceptions of citizens and of
society are built into the design of the original position itself. Rawls’s intent
is that readers will see the outcome of the original position as justified
because they will see how it embodies plausible understandings of citizens
and society, and also because this outcome confirms many of their
considered convictions about justice on specific issues.
The original position is a thought experiment: an imaginary situation in which
each real citizen has a representative, and all of these representatives come
to an agreement on which principles of justice should order the political
institutions of the real citizens. This thought experiment is better than trying
to get all real citizens actually to assemble in person to try to agree to
principles of justice for their society. Even if that were possible, the
bargaining among real citizens would be influenced by all sorts of factors
irrelevant to justice, such as who could threaten the others most, or who
could hold out for longest.
The original position abstracts from all such irrelevant factors. The original
position is a fair situation in which each citizen is represented as only a free
and equal citizen: each representative wants only what free and equal
citizens want, and each tries to agree to principles for the basic structure
while situated fairly with respect to the other representatives. The design of
the original position thus models the ideas of freedom, equality, and
fairness. For example, fairness and equality are modeled in the original
position by the symmetrical situation of the parties: no citizen’s
representative is able to threaten any other citizen’s representative, or to
hold out longer for a better deal.
The most striking feature of the original position is the veil of ignorance,
which prevents arbitrary facts about citizens from influencing the agreement
among their representatives. As we have seen, Rawls holds that the fact
that a citizen is of a certain race, class, and gender is no reason for social
institutions to favor or disfavor her. Each representative in the original
position is therefore deprived of knowledge of the race, class, and gender
of the real citizen that they represent. In fact, the veil of ignorance deprives
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the parties of all facts about citizens that are irrelevant to the choice of
principles of justice: not only facts about their race, class, and gender but
also facts about their age, natural endowments, and more. Moreover the veil
of ignorance also screens out specific information about what society is like
right now, so as to get a clearer view of the permanent features of a just
social system.
Behind the veil of ignorance, the informational situation of the parties that
represent real citizens is as follows:
• Parties do not know
o The race, ethnicity, gender, age, income, wealth, natural
endowments, comprehensive doctrine, etc. of any of the
citizens in society, or to which generation in the history of
the society these citizens belong;
o The political system of the society, its class structure,
economic system, or level of economic development.
• Parties do know
o That citizens in the society have different comprehensive
doctrines and plans of life; that all citizens have interests in
more primary goods;
o That the society is under conditions of moderate scarcity:
there is enough to go around, but not enough for everyone
to get what they want;
o General facts and common sense about human social life;
general conclusions of science (including economics and
psychology) that are uncontroversial.
The veil of ignorance situates the representatives of free and equal citizens
fairly with respect to one another. No party can press for agreement on
principles that will arbitrarily favor the particular citizen they represent,
because no party knows the specific attributes of the citizen they represent.
The situation of the parties thus embodies reasonable conditions, within
which the parties can make a rational agreement. Each party tries to agree
to principles that will be best for the citizen they represent (i.e., that will
maximize that citizen’s share of primary goods). Since the parties are fairly
situated, the agreement they reach will be fair to all actual citizens.
The design of the original position also models other aspects of Rawls’s
conceptions of citizens and society. For example, the publicity of a well-
ordered society is modeled by the fact that the parties must choose among
principles that can be publicly endorsed by all citizens. There are also some
assumptions that make the hypothetical agreement determinate and
decisive: the parties are not motivated by envy (i.e., by how much citizens
besides their own end up with); the parties are neither risk-seeking nor risk-
averse; and the parties must make a final agreement on principles for the
basic structure: there are no “do-overs” after the veil of ignorance is lifted
and the parties learn which real citizen they represent.
4.7 The Argument from the Original Position: The Selection of Principles
The argument from the original position has two parts. In the first part, the
parties agree to principles of justice. In the second part, the parties check
that a society ordered by these principles could be stable over time. Rawls
only attempts to show that his two principles of justice as fairness would be
favored over utilitarian principles, since he sees utilitarianism as the main
competing tradition of reasoning about justice. The parties are thus
presented with a choice between Rawls’s two principles and utilitarian
principles, and asked which principles they would prefer to agree to.
The first part of the original position contains two fundamental comparisons
between Rawls’s principles and utilitarian principles. In the first comparison,
the parties compare Rawls’s principles to the principle of average utility: the
principle that the basic structure should be arranged so as to produce the
highest level of utility averaged among all citizens. Rawls argues that the
parties would favor his principles in this comparison, because the first
principle of justice as fairness secures equal liberties for all citizens.
In this first comparison, Rawls argues that it is rational for the parties to
use maximin reasoning: to maximize the minimum level of primary goods
Page 14 of 25
that the citizens they represent might find themselves with. And maximin
reasoning, he says, favors justice as fairness.
Under average utilitarianism, Rawls argues, the basic liberties of some
citizens might be restricted for the sake of greater benefits to other citizens.
For example, restricting the political and religious liberties of a weak minority
might work to the benefit of the majority, and so produce a higher average
level of utility in the society. A party in the original position will find the
possibility that their citizen might be denied political and religious liberties
intolerable, given that the party could instead secure equal liberties for their
citizen by choosing justice as fairness. A party will not be willing to gamble
with the political standing and deepest commitments of the citizen they
represent, Rawls says, when they could safeguard the standing and
commitments of their citizen even if their citizen turns out to be in a weak
minority.
Moreover, Rawls says, a society ordered by the principles of justice as
fairness has other advantages over a utilitarian society. Securing equal
basic liberties for all encourages a spirit of cooperation among citizens on a
basis of mutual respect, and takes divisive conflicts about whether to deny
liberties to some citizens off of the political agenda. By contrast, a utilitarian
society would be riven by mutual suspicions, as different groups put forward
highly speculative arguments that average utility could be increased by
implementing their partisan policies. Rawls’s first principle, by securing
permanent equal liberties for all citizens, increases social harmony by
making it easier for justice to be seen to be done. The balance of
considerations in favor of justice as fairness over average utility here is,
Rawls claims, decisive.
In the second fundamental comparison, the parties are offered a choice
between justice as fairness and the principle of restricted utility. The
principle of restricted utility is identical to Rawls’s two principles, except that
the difference principle is replaced with a principle which says that the
distribution of wealth and income should maximize average utility,
constrained by a guaranteed minimum level of income for all. While the first
comparison turned on the importance of the basic liberties, the second
comparison contains Rawls’s formal argument for the difference principle.
Maximin reasoning plays no role in the argument for the difference principle.
Nor does aversion to uncertainty (JF, xvii, 43, 95, 96).
In this second comparison, Rawls argues that the parties will favor justice
as fairness because its principles provide a better basis for enduring
cooperation among all citizens. The difference principle, he says, asks less
of the better-off than restricted utility asks of the worst-off. Under the
difference principle, he says, those who are better endowed are permitted
to gain more wealth and income, on the condition that their doing so also
benefits their fellow citizens. Under restricted utility, by contrast, those living
at the minimum will suspect that their interests have been sacrificed to make
the better-off better off still. These citizens at the minimum may become
cynical about their society, and withdraw from active participation in public
life.
Moreover, it is again difficult to maintain a public agreement as to which
economic policies actually will maximize average utility, and debates over
where to set the guaranteed minimum may lead to mistrust among social
classes. The difference principle instead encourages mutual trust and the
cooperative virtues by instantiating an ideal of economic reciprocity. Each
party will see the advantages for the citizen they represent of securing the
more harmonious social world of justice as fairness.
4.8 The Argument from the Original Position: The Check for Stability
Having selected the two principles of justice as fairness, the parties turn to
the second part of the original position: the check that these principles can
order a society stably over time. The parties check, that is, whether those
who grow up under institutions arranged by these principles will develop
sufficient willingness to abide by them that the principles can serve as the
focus of an enduring overlapping consensus.
Rawls argues that the parties will see that his two principles are congruent
with each citizen’s good. Under the two principles, the society’s basic
institutions affirm the freedom and equality of each citizen, giving a public
basis for each citizen’s self-respect. This public basis of self-respect is vital
for citizens to be able to pursue their life plans with energy and confidence.
Citizens will also see that the basic liberties allow sufficient social space for
them to pursue their reasonable conceptions of the good. Whether poor or
rich, citizens will tend not to be envious or imperious, as they will see how
the economy works toward the reciprocal advantage of all. And citizens may
be satisfied by reflecting on the collective good that they can achieve with
each other, by working together to maintain just institutions over time.
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Given that the two principles are congruent with citizens’ good, Rawls
argues that it is reasonable to suppose that citizens will develop a desire to
act in accordance with them. People become attached to people and
institutions that they see benefiting them, and the two principles create a
social world in which each citizen can pursue her own ends on a basis of
mutual respect with other citizens. Since this is experienced as a good, the
principles will gain citizens’ willing and stable allegiance. “The most stable
conception of justice,” Rawls says, “is one that is perspicuous to our reason,
congruent with our good, and rooted not in abnegation but in affirmation of
the self” (TJ, 261).
4.9 Just Institutions: The Four-Stage Sequence
The two parts of the argument for justice as fairness above occur at the first
stage of the original position. At this first stage, the parties also agree to
a principle of just savings to regulate how much each generation must save
for future generations. Since the parties do not know which era the citizens
they represent live in, it is rational for them to choose a savings principle
that is fair to all generations. Rawls says that the parties need not choose a
savings principle that requires endless economic growth. Rather, the parties
may prefer a Millian “steady state” of zero real growth, once a generation
has been reached in which the two principles are satisfied.
After agreeing on the two principles and a principle of just savings, the
parties then proceed further through the four-stage sequence, tailoring
these general principles to the particular conditions of the society of the
citizens they represent. Through this four-stage sequence, the veil of
ignorance that screens out information about society’s general features
gradually becomes thinner, and the parties use the new information to
decide on progressively more determinate applications of the principles
already agreed upon. The parties, that is, progressively fill in the institutional
details of what justice requires in the real world.
At the second stage of the original position, the parties are given more
information about society’s political culture and economic development, and
take on the task of crafting a constitution that realizes the two principles of
justice. At the third stage, the parties learn still more about the details of
society, and agree to specific legislation that realize the two principles within
the constitutional framework decided at the second stage. At the fourth
stage, the parties have full information about society, and reason as judges
and administrators to apply the previously-agreed legislation to particular
cases. When the four stages are complete, the principles of justice as
fairness are fully articulated for society’s political life.
To illustrate: at the constitutional (second) and legislative (third) stages, the
parties specify basic liberties such as “freedom of thought” into more
particular rights, like the right to free political speech. The right to political
speech is itself then further specified as the right to criticize the government,
the rights protecting the press from political interference, and so on. Through
the four-stage sequence, the parties also adjust the basic liberties to fit with
one another and with other values, always aiming for an overall scheme of
liberties that will best enable citizens to develop and exercise their two moral
powers and pursue their determinate conceptions of the good (PL, 289–
371).
At the later stages, the parties also work out the institutions that will be
necessary to realize the fair value of the equal political liberties. On this
topic, Rawls is adamant: unless there are public funds for elections,
restrictions on campaign contributions, and substantially equal access to the
media, politics will be captured by concentrations of private economic
power. This will make it impossible for equally-able citizens to have equal
opportunities to influence politics regardless of their wealth, as fair value
demands. As he says in a discussion of public reason, public deliberation
must be “set free from the curse of money” (PL, 449).
The parties attempt to realize the second principle of justice at the legislative
stage, by shaping the laws that regulate property, contract, taxation,
inheritance, hiring, minimum wages, and so on. Their task is not to allocate
some fixed set of goods that appear from nowhere, but rather to devise a
set of institutions for education, production, and distribution whose operation
will realize fair equality of opportunity and the difference principle over time.
For fair equality of opportunity, Rawls emphasizes that laws and policies
must go beyond merely preventing discrimination in education and hiring.
To ensure fair opportunity regardless of social class of origin, the state must
also fund high-quality education for the less well-off. Moreover, the state
must also guarantee both a basic minimum income and health care for all.
On realizing the difference principle, Rawls says that the goal is an
economic order that maximizes the position of the worst-off group (e.g.,
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unskilled laborers, or those with less than half of the median wealth and
income over their lifetimes). Given that institutions realizing the prior
principles are already in place, this should be approximately achievable by,
for example, varying marginal rates of tax and tax exemptions.
Rawls explicitly rejects the welfare state (JF, 137–40). Welfare-state
capitalism leaves control of the economy in the hands of a group of rich
private actors. It therefore fails to ensure for all citizens enough resources
to have roughly equal chances of influencing politics, or to have sufficiently
equal opportunities in education and employment. The welfare state
therefore tends to generate a demoralized under-class.
Laissez-faire capitalism is even worse for equality than the welfare state
along these dimensions. And a socialist command economy would put too
much power in the hands of the state, again endangering political equality
and also threatening basic liberties such as free choice of employment.
Justice as fairness, Rawls says, favors either a property-owning
democracy or liberal (democratic) socialism. The government of a property-
owning democracy takes steps to encourage widespread ownership of
productive assets and broad access to education and training. Liberal
socialism is similar, but features worker-managed firms. The aim of both
systems of political economy is to enable all citizens, even the least
advantaged, to manage their own affairs within a context of significant social
and economic equality. “The least advantaged are not, if all goes well, the
unfortunate and unlucky—objects of our charity and compassion, much less
our pity—but those to whom reciprocity is owed as a matter of basic justice”
(JF, 139).
4.10 The Original Position and Political Constructivism
Rawls describes the original position as a useful device for reaching greater
reflective equilibrium. He holds that the value of the original position as a
method of reasoning is affirmed when it selects the first principle of justice,
since the first principle accords with many people’s settled convictions about
the importance of assuring the basic rights and liberties for all. Having
gained credibility by confirming these settled moral judgments, the original
position then goes on to select principles for issues on which people’s
judgments may be less certain, such as how society should structure
employment opportunities, and what a just distribution of wealth and income
might be.
In this way, the original position first confirms and then extends common
judgments about justice. For Rawls it is important that the same method of
reasoning that explains the equal basic liberties also justifies more political
and economic equality than many people might have initially expected. The
momentum of the argument for the first principle carries through to the
argument for the second principle. Those who believe in equal basic
liberties, but who reject the other egalitarian features of justice as fairness,
must try to find some other route to justifying those basic liberties.
The original position is also the crux of Rawls’s metaethical theory, political
constructivism. Political constructivism is Rawls’s account of the objectivity
and validity of political judgments.
The original position embodies, Rawls says, all of the relevant conceptions
of person and society, and principles of practical reasoning, for making
judgments about justice. When there is an overlapping consensus focused
on justice as fairness, the original position specifies a shared public
perspective from which all citizens can reason about the principles of justice
and their application to their society’s institutions. Judgments made from this
perspective are then objectively correct, in the sense of giving reasons to
citizens to act regardless of their actual motivations, or the reasons they
think they have within their particular points of view.
Political constructivism does not maintain that the original position shows
that the principles of justice as fairness are true. Questions of truth are ones
about which reasonable citizens may disagree, and are to be addressed by
each citizen from within her own comprehensive doctrine. Judgments made
from the original position are, however, valid, or as Rawls says, reasonable.
5. The Law of Peoples: Liberal Foreign Policy
With the theories of legitimacy and justice for a self-contained liberal society
completed, Rawls then extends his approach to international relations with
the next in his sequence of theories: the law of peoples.
Rawls assumes that no tolerable world state could be stable. He cites Kant
in asserting that a world government would either be a global despotism or
beleaguered by groups fighting to gain their political independence. So the
Page 17 of 25
law of peoples will be international, not cosmopolitan: it will be a foreign
policy that guides a liberal society in its interactions with other societies, both
liberal and non-liberal.
Rawls describes the main ideas motivating his law of peoples as follows:
Two main ideas motivate the Law of Peoples. One is that the great evils of
human history—unjust war and oppression, religious persecution and the
denial of liberty of conscience, starvation and poverty, not to mention
genocide and mass murder—follow from political injustice, with its own
cruelties and callousness… The other main idea, obviously connected with
the first, is that, once the gravest forms of political injustice are eliminated
by following just (or at least decent) social policies and establishing just (or
at least decent) basic institutions, these great evils will eventually disappear
(LP, 6–7).
The most important feature of the “realistic utopia” that Rawls envisages
in The Law of Peoples is that the great evils of human history no longer
occur. The most important condition for this realistic utopia to come about is
that all societies are internally well-ordered: that all have just, or at least
decent, domestic political institutions.
5.1 The International Basic Structure and the Principles of the Law of
Peoples
Much of Rawls’s presentation of the law of peoples parallels the
presentations of political liberalism and justice as fairness. As a liberal
society has a basic structure of institutions so, Rawls says, there is an
international basic structure (LP, 33, 62, 114, 115, 122, 123). While Rawls
does not say that the international basic structure has a pervasive impact
on the life chances of individuals, the rules of this basic structure are
coercively enforced (for example, Iraq’s invasion of Kuwait in 1990 was
coercively reversed by a coalition of other countries). The principles that
should regulate this international basic structure thus require justification.
The justification of these principles must accommodate the fact that there is
even more pluralism in worldviews among contemporary societies than
there is within a single liberal society.
Rawls puts forward eight principles for ordering the international basic
structure:
1. Peoples are free and independent, and their freedom and
independence are to be respected by other peoples.
2. Peoples are to observe treaties and undertakings.
3. Peoples are equal and are parties to the agreements that bind them.
4. Peoples are to observe the duty of nonintervention (except to
address grave violations of human rights).
5. Peoples have a right of self-defense, but no right to instigate war for
reasons other than self-defense.
6. Peoples are to honor human rights.
7. Peoples are to observe certain specified restrictions in the conduct
of war.
8. Peoples have a duty to assist other peoples living under
unfavorable conditions that prevent their having a just or decent
political and social regime (LP, 37).
All of these principles, with the exception of the last one, are familiar from
contemporary international law (though Rawls’s list of human rights for
principles 4 and 6 is shorter than the list in international law). Rawls also
leaves room for his law of peoples to accommodate various organizations
that may help societies to increase their political and economic coordination,
such as idealized versions of a United Nations, a World Trade Organization,
and a World Bank.
5.2 Peoples: Liberal and Decent
The actors in Rawls’s international theory are not individuals (citizens) but
societies (peoples). A people is a group of individuals ruled by a common
government, bound together by common sympathies, and firmly attached to
a common conception of right and justice. “People” is a moralized concept,
and not all states currently on the world map qualify as such.
Page 18 of 25
Rawls’s conception of peoples within the law of peoples parallels his
conception of citizens within justice as fairness. Peoples see themselves as
free in the sense of being rightfully politically independent; and as equal in
regarding themselves as equally deserving of recognition and respect.
Peoples are reasonable in that they will honor fair terms of cooperation with
other peoples, even at cost to their own interests, given that other peoples
will also honor those terms. Reasonable peoples are thus unwilling to try to
impose their political or social ideals on other reasonable peoples. They
satisfy the criterion of reciprocity with respect to one another.
Rawls describes the fundamental interests of a people as follows:
• Protecting its political independence, its territory, and the security of
its citizens;
• Maintaining its political and social institutions and its civic culture;
• Securing its proper self-respect as a people, which rests on its
citizens’ awareness of its history and cultural accomplishments.
Rawls contrasts peoples with states. A state, Rawls says, is moved by the
desires to enlarge its territory, or to convert other societies to its religion, or
to enjoy the power of ruling over others, or to increase its relative economic
strength. Peoples are not states, and as we will see peoples may treat
societies that act like states as international outlaws.
Peoples are of two types, depending on the nature of their domestic political
institutions. Liberal peoples satisfy the requirements of political liberalism:
they have legitimate liberal constitutions, and they have governments that
are under popular control and not driven by large concentration of private
economic power.
Decent peoples are not internally just from a liberal perspective. Their basic
institutions do not recognize reasonable pluralism or embody any
interpretation of the liberal ideas of free and equal citizens cooperating fairly.
The institutions of a decent society may be organized around a single
comprehensive doctrine, such as a dominant religion. The political system
may not be democratic, and women or members of minority religions may
be excluded from public office. Nevertheless, decent peoples are well-
ordered enough, Rawls says, to merit equal membership in international
society.
Like all peoples, decent peoples do not have aggressive foreign policies.
Beyond this, Rawls describes one type of decent society—a decent
hierarchical society—to illustrate what decency requires.
A decent hierarchical society’s basic structure specifies a decent system of
social cooperation. First, it secures a core list of human rights. Second, its
political system takes the fundamental interests of all persons into account
through a decent consultation hierarchy. This means that the government
genuinely consults with the representatives of all social groups, which
together represent all persons in the society, and that the government
justifies its laws and policies to these groups. The government does not
close down protests, and responds to any protests with conscientious
replies. The government also supports the right of citizens to emigrate.
Rawls imagines a decent hierarchical society that he calls “Kazanistan.” In
Kazanistan, Islam is the favored religion, and only Muslims can hold the high
office. However non-Muslim religions may be practiced without fear, and
believers in them are encouraged to take part in the civic culture of the wider
society. Minorities are not subject to arbitrary discrimination by law, or
treated as inferior by Muslims. Kazanistan would qualify, Rawls says, as a
decent, well-ordered member of the society of peoples, entitled to respectful
toleration and equal treatment by other peoples.
5.3 International Toleration and Human Rights
Liberal peoples tolerate decent peoples, and indeed treat them as equals.
Not to do so, Rawls says, would be to fail to express sufficient respect for
acceptable ways of ordering a society. Liberal peoples should recognize the
good of national self-determination, and let decent societies decide their
futures for themselves. The government of a liberal people should not
criticize decent peoples for failing to be liberal, or set up incentives for them
to become more so. Criticism and inducements may cause bitterness and
resentment within decent peoples, and so be counter-productive.
Indeed public reason imposes duties of civility upon the members of
international society, just as it does upon members of a liberal society.
Government officials and candidates for high office should explain their
foreign policy positions to other peoples in terms of the principles and values
Page 19 of 25
of the law of peoples, and should avoid reliance on contentious parochial
reasons that all peoples cannot reasonably share.
One major reason that liberal peoples tolerate decent peoples, Rawls says,
is that decent peoples secure for all persons within their territory a core list
of human rights. These core human rights include rights to subsistence,
security, personal property, and formal equality before the law, as well as
freedoms from slavery, protections of ethnic groups against genocide, and
some measure of liberty of conscience (but not, as we have seen, a right to
democratic participation). These core human rights are the minimal
conditions required for persons to be able to engage in social cooperation
in any real sense, so any well-ordered society must protect them.
The role of human rights in the law of peoples is thus to set limits on
international toleration. Any society that guarantees Rawls’s list of human
rights is to be immune from coercive intervention from other peoples.
Societies that violate human rights overstep the limits of toleration, and may
rightly be subject to economic sanctions or even military intervention.
5.4 The International Original Position
The international original position parallels the domestic original position of
justice as fairness. This original position answers the question: “What terms
of cooperation would free and equal peoples (liberal and decent) agree to
under fair conditions?” The strategy is to build the conception of peoples
into the design of this original position, along with restrictions on reasons for
favoring basic principles of international law. The strategy, that is, is to
describe reasonable conditions under which a rational agreement on
principles can be made.
In the international original position, representatives of each people agree
on principles for the international basic structure. Each party is behind a veil
of ignorance, deprived of information about the people they represent, such
as the size of its territory and population, and its relative political and
economic strength. Each party tries to do the best they can for the people
they represent, in terms of the fundamental interests that all peoples have.
Rawls claims that the parties in the international original position would favor
the eight principles listed above. Starting from a baseline of equality and
independence, the parties would see no reason to introduce inequalities into
the relationships among peoples (beyond certain functional inequalities in
the design of cooperative organizations, such as richer countries
contributing more to an idealized United Nations). The parties would reject
international utilitarian principles, as no people is prepared to accept that it
should sacrifice its fundamental interests for the sake of greater total global
utility.
After selecting the eight principles of the law of peoples, the parties next
check that these principles can stably order international relations over time.
Analogously to the domestic case, the parties will see that the principles of
the law of peoples affirm the good of peoples, and that peoples will develop
trust and confidence in one another as all willingly continue to abide by these
principles. The stability of the international political order will thus be stability
for the right reasons (and not a mere modus vivendi), since each people will
affirm the principles as its first-best option whatever the international
balance of power might become.
Rawls also attempts to draw empirical support for his stability argument from
the literature on the democratic peace. Social scientists have found that
historically democracies have tended not to go to war with one another.
Rawls explains this by saying that liberal societies are, because of their
internal political structures, satisfied. Liberal peoples have no desires for
imperial glory, territorial expansion, or to convert others to their religion, and
whatever goods and services they need from other countries they can obtain
through trade. Liberal peoples, Rawls says, have no reasons to fight
aggressive wars, so a genuine peace can endure among them. And since
decent peoples are defined as non-aggressive, any decent people can join
this liberal peace as well.
Once the parties have agreed to the eight principles of the law of peoples,
they then continue to specify these principles more precisely in a process
analogous to the domestic four-stage sequence.
5.5 Non-Ideal Theory: Outlaw States and Burdened Societies
The principles selected in the international original position contain
provisions for non-ideal situations: situations in which nations are unwilling
to comply with the ideal principles, or are unable to cooperate on their terms.
These provisions are embedded in principles 4 through 8 of the law of
peoples.
Page 20 of 25
Outlaw states are non-compliant: they threaten the peace by attempting to
expand their power and influence, or by violating the human rights of those
within their territory. The principles of the law of peoples allow peoples to
fight these outlaw states in self-defense, and to take coercive actions
against them to stop their violations of human rights. In any military
confrontations with outlaw states, peoples must obey the principles of the
just prosecution of war, such as avoiding direct attacks on enemy civilians
in all but the most desperate circumstances. The aim of war, Rawls says,
must be to bring all societies to honor the law of peoples, and eventually to
become fully participating members of international society.
Burdened societies struggle with social and economic conditions that make
it difficult for them to maintain either liberal or decent institutions. A burdened
society may lack sufficient material or social resources to support a scheme
of social cooperation, perhaps because its population has grown beyond its
territory’s means to support it. It is the basic structure and political culture of
a society that are most crucial for its self-sufficiency; the international
community must help a burdened society to rise above this threshold. The
law of peoples (eighth principle) requires that burdened peoples be assisted
until they can handle their own affairs (i.e., become well-ordered).
This duty of assistance is Rawls’s greatest divergence from the rules of
today’s international law. Accepting this duty would require significant
changes in how nations respond to global poverty and failed states.
5.6 Reconciliation and Realistic Utopia
Rawls’s vision is of a perpetually peaceful and cooperative international
order, where liberal and decent peoples stand ready to pacify aggressive
states, to secure core human rights, and to help struggling countries until
they become self-sufficient.
Compared to other theories, Rawls’s international theory has limited
ambitions. Officials of democratic societies can do little more than hope that
decent societies will become internally more tolerant and democratic. Once
the duty to assist burdened peoples is satisfied, there are no further
requirements on international economic distributions: for Rawls,
international economic inequalities are of no political concern as such.
Moreover, individuals around the world may suffer greatly from bad luck,
and they may be haunted by spiritual emptiness. These are not concerns
reached by a Rawlsian foreign policy.
The limited practical goal of Rawls’s law of peoples is the elimination of the
great evils of human history: unjust war and oppression, religious
persecution and the denial of liberty of conscience, starvation and poverty,
genocide and mass murder. The limits of this ambition mean that there will
be much in the world to which Rawls’s political philosophy offers no
reconciliation.
Nevertheless, while Rawls’s vision is limited, it is also utopian. To believe
that Rawls’s vision is possible is to believe that individuals are not inevitably
selfish or amoral, and that international relations can be more than merely
a contest for domination, wealth, and glory. Human life, and human history,
need not be merely a Hobbesian “perpetual and restless desire of power
after power” (1651, 58). Affirming the possibility of a just and peaceful future
can inoculate us against a cynicism that undermines the decency,
reciprocity, and reasonableness that exist now and that may grow from now
on.
“By showing how the social world may realize the features of a realistic
utopia,” Rawls says, “political philosophy provides a long-term goal of
political endeavor, and in working toward it gives meaning to what we can
do today” (LP, 128).
6. Further Reading
Beyond the texts by Rawls cited above, readers may wish to consult Rawls’s
lectures on Hume, Leibniz, Kant, and Hegel (LHMP) and on Hobbes, Locke,
Hume, Mill, Marx, Sidgwick, and Butler (LHPP) to see how Rawls’s
interpretations of these authors informed his own theorizing. Reath,
Herman, and Korsgaard (1997) is a collection of essays by Rawls’s students
on his work in the history of philosophy.
The scholarly literature on Rawls is vast; below are some entry points that
may be useful.
Voice (2011) is a summary and defense of Rawls’s three main books that is
accessible to those with some undergraduate philosophical training. More
advanced students wanting a guide to A Theory of Justice may wish to read
Mandle (2009). Mandle and Reidy (2014) is a lexicon with short entries on
Page 21 of 25
important concepts, issues, influences, and critics, from Abortion to Maximin
to Wittgenstein.
Freeman (2007) sets out in a single volume the historical development of
Rawls’s theories, as well as sympathetic elaborations of many of his central
arguments. Weithman (2011) details the evolution of Rawls’s thought from A
Theory of Justice to Political Liberalism. Pogge (2007) is an explication of
Rawls’s domestic theories, which also contains a biographical sketch and
brief replies to libertarian and communitarian critics (for which see also
Pogge (1989)). Maffettone (2011) and Audard (2007) are critical
introductions to Rawls’s three major works.
Historically, the most influential volume of essays on justice as fairness has
been Daniels (1975). Freeman (2003) is a collection of articles on major
themes in Rawls’s domestic theories; it also contains an introductory
overview of all of Rawls’s work. Brooks and Nussbaum (2015) collects
articles on Rawls’s political liberalism. Older collections on political
liberalism include Davion and Wolf (1999), Griffin and Solum (1994) and
Lloyd (1994). Martin and Reidy (2006) focuses on the law of peoples. Hinton
(2015) is a collection on the original position.
Mandle and Reidy (2013) and Reidy (2008) are volumes of scholarly essays
spanning a wide range of issues arising from Rawls’s work. Young (2016)
is a selection of more critical articles. Mandle and Roberts-Cady (2020) pairs
authors in debates over major issues in Rawls’s writings.
A debate over Rawls and race is between Mills (2017, chs. 8 and 9) and
Shelby (2004, 2013). Abbey (2013) is a volume on feminist engagements
with Rawls’s work. Bailey and Gentile (2014) is an anthology that explore
how extensively religious believers can engage in the political life of a
Rawlsian society. Brooks (2012) and Fleming (2004) are collections on
Rawls and the law. O’Neill and Williamson (2012) is on the institutional
design of a Rawlsian property-owning democracy. Edmundson (2017)
argues that Rawlsian justice requires socialism.
Galisanka (2019) is an intellectual history leading up to A Theory of Justice,
that also details Rawls’s experiences in World War II. Gregory (2007) and
Nelson (2019, ch. 3) examine Rawls’s early religious writings. Bok (2017)
emphasizes the Wittgensteinian influences on Rawls’s early thought. Botti
(2019) situates Rawls within American pragmatism. Recent historicist
treatments of Rawls’s work include Forrester (2019) and some of the essays
in Smith, Bejan, and Zimmerman (2021). In this last volume, Terry (2021)
discusses Rawls’s condemnation of the racism of the Vietnam draft.
Readers who can gain access (usually through a library) to Kukathas (2003,
4 volumes) or Richardson and Weithman (1999, 5 volumes) will find many
of older scholarly articles on Rawls’s work, divided according to specific
themes (e.g., maximin reasoning, public reason) and types of criticisms
(e.g., conservative critiques, feminist critiques). Readers without access to
the Richardson and Weithman volumes can follow the links, in the Other
Internet Resources section below, to their tables of contents and can then
locate the articles in their original places of publication.
Bibliography
Works by Rawls Cited in this Entry
1971 A Theory of Justice [TJ], Cambridge, MA: Harvard University
Press. Revised edition, 1999. The page citations in this entry
are to the 1971 edition.
1993 Political Liberalism [PL], New York: Columbia University Press.
Paperback edition, 1996; Second edition, 2005.
1999 The Law of Peoples [LP], Cambridge, MA: Harvard University
Press.
1999 Collected Papers [CP], S. Freeman (ed.), Cambridge, MA:
Harvard University Press.
1999 Lectures on the History of Moral Philosophy [LHMP], B. Herman
(ed.), Cambridge, MA: Harvard University Press.
2001 Justice as Fairness: A Restatement ]JF], E. Kelly (ed.),
Cambridge, MA: Harvard University Press.
Page 22 of 25
2007 Lectures on the History of Political Philosophy [LHPP], S.
Freeman (ed.), Cambridge, MA: Harvard University Press
2009 A Brief Inquiry into the Meaning of Sin & Faith (with “On My
Religion”) [BI], T. Nagel (ed.), Cambridge, MA: Harvard
University Press
Secondary Sources
• Abbey, R. (ed.), 2013, Feminist Interpretations of John Rawls,
University Park, PA: Penn State University Press.
• Audard, C., 2007, John Rawls, Montreal: McGill-Queen’s University
Press.
• Bailey, T., and Gentile, V. (eds.), 2014, Rawls and Religion, New
York: Columbia University Press.
• Bok, P. “‘The Latest Invasion from Britain’: Young Rawls and His
Community of American Ethical Theorists,” Journal of the History of
Ideas 78(2): 275–85.
• Brooks, T. (ed.), 2012, Rawls and Law, reissued in 2016, New York:
Routledge.
• Brooks, T., and Nussbaum, M. (eds.), 2015, Rawls’s Political
Liberalism, New York: Columbia University Press.
• Daniels, N., (ed.), 1975, Reading Rawls: Critical Studies on
Rawls’ A Theory of Justice, New York: Basic Books. Reissued with
new Preface, 1989.
• Davion, V. and Wolf, C. (eds.) 1999, The Idea of a Political
Liberalism: Essays on Rawls, Lanham, MD: Rowman and Littlefield.
• Edmundson, W., 2017, John Rawls: Reticent Socialist, Cambridge:
Cambridge University Press.
• Fleming, J., (ed.), 2004, Rawls and the Law, Fordham Law
Review 72 (special issue).
• Forrester, K., 2019, In the Shadow of Justice: Postwar Liberalism
and the Remaking of Political Philosophy, Princeton, NJ: Princeton
University Press.
• Freeman, S., (ed.), 2003, The Cambridge Companion to Rawls,
Cambridge: Cambridge University Press.
• –––, 2007, Rawls, London: Routledge.
• Galisanka, A., 2019, John Rawls: The Path to A Theory of
Justice, Cambridge, MA: Harvard University Press.
• Gregory, E., 2007, “Before the Original Position: The Neo-Orthodox
Theology of the Young John Rawls,” Journal of Religious
Ethics 35(2): 179–206.
• Griffin, S., and Solum, L. (eds.) 1994, Symposium on John
Rawls’s Political Liberalism, Chicago Kent Law Review, 69: 549–
842.
• Hinton, T., (ed.), 2015, The Original Position, Cambridge:
Cambridge University Press.
• Hobbes, T., 1651, Leviathan; page reference is to the 1994 edition,
E. Curley (trans.), London: Hackett.
• Kukathas, C., (ed.), 2003, John Rawls: Critical Assessments of
Leading Political Philosophers, 4 vol., London: Routledge.
Page 23 of 25
• Lloyd, S., (ed.), 1994, John Rawls’s Political Liberalism, Pacific • Reath, A., Herman, B., and Korsgaard, C. (eds.), 1997, Reclaiming
Philosophical Quarterly 75 (special double issue). the History of Ethics: Essays for John Rawls, Cambridge:
Cambridge University Press.
• Maffettone, S., 2011, Rawls: An Introduction, London: Polity.
• Reidy, D. (ed.), 2008, John Rawls, reissued in 2016, New York:
• Mandle, J., 2009, Rawls’s A Theory of Justice: An Introduction,
Routledge.
Cambridge: Cambridge University Press.
• Richardson, H., and Weithman, P. (eds.), 1999, The Philosophy of
• Mandle, J., and Reidy, D. (eds.), 2013, A Companion to Rawls,
Rawls: A Collection of Essays, 5 vol., New York: Garland.
Chichester: John Wiley & Sons.
• Shelby, T., 2004, “Race and Social Justice: Rawlsian
• –––, 2014, The Cambridge Rawls Lexicon, Cambridge: Cambridge
Considerations,” Fordham Law Review 72(5): 1697–714.
University Press.
• –––, 2013, “Racial Realities and Corrective Justice,” Critical
• Mandle, J. and Roberts-Cady, S. (eds.), 2020, John Rawls:
Philosophy of Race 1(2): 145–62.
Debating the Major Questions, Oxford: Oxford University Press.
• Smith, S., Bejan, T., and Zimmerman, A. (eds.), 2021, “The
• Martin, R. and Reidy, D. (eds.), 2006, Rawls’s Law of Peoples: A
Historical Rawls,” Modern Intellectual History (special issue)
Realistic Utopia?, Oxford: Blackwell.
[Preprint available online]
• Mills, C., 2017, Black Rights/White Wrongs: The Critique of Racial
• Terry, B., 2021, “Conscription and the Color Line: Rawls, Race, and
Liberalism, Oxford: Oxford University Press.
Vietnam,” in Smith, Bejan and Zimmerman (2021) [Preprint
• Nozick, R., 1974, Anarchy, State, and Utopia, New York: Basic available online].
Books.
• Vatican Council II, 1965, Dignitas Humanae (Declaration on
• O’Neill, M., and Williamson, T. (eds.), 2012, Property-Owning Religious Freedom), in Documents of Vatican II, W. Abbott (ed.),
Democracy: Rawls and Beyond, Chichester: John Wiley & Sons. New York: Herder and Herder, 1966.
• Pogge, T., 1989, Realizing Rawls, Ithaca, NY: Cornell University • Voice, P., 2011, Rawls Explained: From Fairness to Utopia,
Press. Chicago: Open Court.
• –––, 2007, John Rawls: His Life and Theory of Justice, Oxford: • Young, S. (ed.), 2016, Reflections on Rawls: An Assessment of His
Oxford University Press. Legacy, London: Routledge.

• Weithman, P., 2011, Why Political Liberalism? On John Rawls’s

Political Turn, Oxford: Oxford University Press.

Page 24 of 25
Page 25 of 25
CHAPTER 2

Ordinance Power

SECTION 2. Executive Orders.—Acts of the President providing for rules of a general or permanent
character in implementation or execution of constitutional or statutory powers shall be promulgated in
executive orders.

SECTION 3. Administrative Orders.—Acts of the President which relate to particular aspects of

governmental operations in pursuance of his duties as administrative head shall be promulgated in
administrative orders.

SECTION 4. Proclamations.—Acts of the President fixing a date or declaring a status or condition of

public moment or interest, upon the existence of which the operation of a specific law or regulation is
made to depend, shall be promulgated in proclamations which shall have the force of an executive
order.

SECTION 5. Memorandum Orders.—Acts of the President on matters of administrative detail or of

subordinate or temporary interest which only concern a particular officer or office of the Government
shall be embodied in memorandum orders.

SECTION 6. Memorandum Circulars.—Acts of the President on matters relating to internal

administration, which the President desires to bring to the attention of all or some of the departments,
agencies, bureaus or offices of the Government, for information or compliance, shall be embodied in
memorandum circulars.

SECTION 7. General or Special Orders.—Acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special
orders.

Page 1 of 1
The Catholic Lawyer

Volume 13 Article 3
Number 2 Volume 13, Spring 1967, Number 2

The Legal Philosophy of Roscoe Pound

Linus J. McManaman, O.S.B.

Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl

Part of the Natural Law Commons

This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It
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THE LEGAL PHILOSOPHY OF
ROSCOE POUND*
LINUS J. MCMANAMAN, O.S.B.t

A MONG AMERICAN jurists, as well as among those of the

rest of the world, there is a noticeable interest in natural law.
Many are calling for some ultimate principles of law to halt the onward
march of pragmatism and its natural offspring, legal realism. But,
unhappily, they are not looking for a natural law in the traditional
Thomistic sense, a natural law that is binding even in the absence
of all positive disposition. Rather they are seeking an ideal picture
of law to serve as a norm for the elaboration of positive law.
Roscoe Pound is an example of those who see philosophy and
natural law only as something to fill lacunae in the positive law,
or to serve as post factum critique of the established law. 'The
traditional meaning of natural law has been lost, and scholastic
philosophers are not without fault. Too often natural law has been
rejected by jurists outside of Thomistic schools because it has not
been properly presented. There is a task for scholastics of guarding
against being deserving of the criticism directed at the contemporary
received natural law, and of entering into the arena with our con-
temporaries to confront them with the true natural-law tradition.
It is beyond the scope of this article to present a complete survey
of Thomistic natural law. But in reviewing the legal theory of Roscoe
Pound we may see where scholasticism may become an effective force.

Pound and his Problems

It was August 29, 1906, at the Capitol Building, St. Paul,
Minnesota, the twenty-ninth Annual Meeting of the American Bar
Association. A young, hitherto unheralded, jurist and professor

*This article is a portion of a thesis submitted in partial fulfillment of

the requirements for the Degree of Doctor of Philosophy at the University of
Fribourg, Switzerland.
t Professor of Natural Philosophy and Ethics, St. Benedict's College.
ROSCOE POUND
from the University of Nebraska shocked
the assembled jurists into attention and
divided the group into two camps with a
paper entitled, The Causes of Popular
Dissatisfaction With the Administration
of Justice.' It was in this way that
Roscoe Pound launched the most brilliant
career in American jurisprudence, or per-
haps, in all contemporary jurisprudence.
In the assembly at this meeting there
was on the one side the "old guard" who
felt that there was no popular dissatisfac-
tion, or, granting that there may have
been a little, they claimed that it was
without reason. On the other side was
the avant garde who lined up with Pound
in a demand for better laws, for better
and more effective administration of jus-
tice. It is not without significance that
his first address of national importance
was concerned with imperfections in the
administration of justice. The task which
he undertook, and which he continues
with undiminished vigor, is that of im-
proving the administration of justice. It
is a task in which, happily for us, he has
met with a considerable amount of suc-
cess.
The St. Paul address may have earned
him a number of opponents as well as
friends, but it also won him national
recognition and an invitation to move
from the relative obscurity of the
Nebraska school to the more known and
more influential Northwestern University
Law School in Evanston, Illinois. While
there, he was instrumental in organizing
'The Causes of Popular Dissatisfaction With
the Administration of Justice, Address before
A.B.A. Annual Meeting (1906), reprinted in
20 J. AM. JUD. SoC'Y (1937).
the National Conference on Criminal Law
and Criminology and the Illinois Law
Review, of which he was editor-in-chief.
In 1909 he was appointed to the law
faculty of the University of Chicago. He
next became Carter Professor of Law at
Harvard Law School, and in 1916 was
elected dean of that school, a position he
held until his resignation in 1936. As
dean for twenty years of what is usually
considered the nation's most influential
law school he was in a position to exer-
cise an enormous impact upon the legal
profession. This influence was widened
in centrifugal circles as more than a
generation of students trained under him
entered the legal profession, many of
them as professors in other schools of
law. Upon his resignation from the
deanship of Harvard he continued an
active life as author, lecturer and teacher,
and performed such functions as serving
on a commission for the codification of
Chinese law. More recently he spent two
years in California organizing a new law
school at the University of California,
Los Angeles, before returning in the fall
of 1952 to Harvard.
The importance and influence of Pound
can hardly be called into question, but
rather than assume it to be known we
can cite a few of the many tributes to his
erudition. Professor Thomas A. Cowan
of Nebraska University credits him with
reworking the whole structure of Amer-
ican legal thought.2 Professor Paul Sayre
of New York University notes that all the
2Cowan, A Report on the Status of Philos-
ophy of Law in the United States, 50 COLUM.
L. REV. 1092 (1950).
 13 CATHOLIC LAWYER, SPRING 1967

rest of the legal scholars have lived off
Pound's erudition for more than forty
years. 3 Professor Edwin W. Patterson
finds Pound's influence in jurisprudence
an aid in preparing legislation, in predict-
ing legal trends and in interpreting legal
literature. He continues that Pound's
ideas have become commonplace, a fact
4 offers we must review, however briefly,
that is a tribute to his insight and vision.
Dean Emeritus Albert Kocourek of
Northwestern compares him to an Alpine
peak towering above all the surrounding
landscape.5 And, finally, Professor Her-
bert D. Laube of Cornell finds that the
genius of Pound is as penetrating as John
Austin's, as illuminating as Henry Maine's,
as resourceful as Rodolf von Ihering's
and as humanizing as Lester F. Ward's;
his influence is more widespread than
that of any jurist ever honored by the
Roman Empire.6 The tribute paid to him
on the occasion of his seventy-fifth birth-
day in 1947 is indicative of his inter-
national as well as his American reputa-
7 last century the historical school of legal
tion.
Turning now from this brief biograph-
ical note 8 we take up the reasons he saw
for the "popular dissatisfaction with the
administration of justice" in order better
to understand what he hoped to accom-
plish. But to understand the problems
as he saw them and the solutions he
the legal and intellectual milieu into
which he entered at the turn of the cen-
tury. The principles of natural law which
served as the foundation of American
law in its inception, as stated in the
Declaration of Independence and the
Constitution, and which continued as the
dominant force in the formative era of
American law from the Revolution to the
Civil War, began to decline in import-
ance about the middle of the last century.
By the end of the century its importance
was negligible. 9
Beginning with the second half of the

3 POUND, OUTLINES OF LECTURES ON JURIS- and South America, South Africa, Australia
PRUDENCE (5th ed. 1943), Sayre, Book Review, and Europe.
57 HARV. L. REV. 581, 584-85 (1944). The Introduction contains many congratulatory
4 Patterson, Pound's Theory o1 Social Interests, messages from many foreign jurists, legal asso-
INTERPRETATIONS OF MODERN LEGAL PHILOS- ciations and politicians. Edmond N. Cahn finds
OPHIES: ESSAYS IN HONOR OF ROSCOE the fact that only two of the thirty-eight essays
POUND 560, 571 (Sayre ed. 1947). deal directly with Pound, a tribute to the
5 Kocourek, Roscoe Pound as a Former fact that he created a widespread and informed
Colleague Knew Him, INTERPRETATIONS OF interest in legal philosophy where he had found
MODERN LEGAL PHILOSOPHIES, op. cit. supra a generation composed almost entirely of igno-
note 4, at 419. ramuses and misologists. Cahn, Jurisprudence,
6 SAYRE, INTERPRETATIONS OF MODERN LEGAL ANN. SURVEY AM. L. 1099, 1104 (1947).
PHILOSOPHIES: ESSAYS IN HONOR OF 8 For a bibliography of works about Pound
ROSCOE POUND (1947), 60 HARV. L. REV. 988 published before July 1, 1940, see SETARO, A
(1947). BIBLIOGRAPHY OF THE WRITINGS OF ROSCOE
7Interpretations of Modern Legal Philosophies: POUND 139-52 (1942).
Essays in Honor of Roscoe Pound contains 9 POUND, THE FORMATIVE ERA OF AMERICAN
essays by thirty-eight legal scholars from North LAW 101-02, 109-10 (1938).
RosCOE POUND
interpretation was in the ascendancy.
Many factors combined to explain this
phenomenon, not the least of which was
the fact that, in 1849, Luther S. Cush-
ing, a student of Savigny, was teaching
law at Harvard University. This fact in
addition to the appearance a few years
earlier of the writings of Kent (1826-30)
and Story (1832-45) led to widespread
acceptance of historical jurisprudence.' 0
The movement received new impetus
when, after 1870, American legal stu-
dents in increasing numbers were pur-
suing their studies in Germany. Stated
briefly this school maintains, after Savig-
ny, that law cannot be made but must
be found, the growth of law being an
unconscious, organic process with legisla-
tion subordinated to custom. As law
grows and becomes more complex and
the popular consciousness (Volksgeist)
cannot manifest itself directly, it becomes
represented by lawyers who formulate
the technical legal principles; the lawyers
do not form laws but formulate the pop-
ular consciousness; legislation follows as
the last stage. Laws are not universally
valid or applicable, but each people has
its own legal habits just as it has a
peculiar language which is not applicable
to others. In this system the jurist ranks
before the legislator in legal progress;
but the jurist does not make laws, rather
he develops the technique of following
the evolution of the Volksgeist by legal
10 Id. at 21: "With the rise of historical
thinking in the nineteenth century there comes
to be a combination of history and philosophy,
observable in Kent and marked in Story. The
stabilizing work of natural law is taken over
by history. .....
historical research.11 The historical
school has always been skeptical of leg-
islation and opposed to codification.
Competing with the historical school
for the primacy was another group which
Pound calls the school of "philosophical
jurisprudence." 12 This is a heterogen-
eous group comprising many philosophies
and various versions of natural-law juris-
prudence. For the most part they had
degenerated into a legal formalism, hold-
ing that a perfect legal system could be
deduced from an ideal of the nature of
law by a process of formal logic, valid
for all peoples, at all times and in every
place. This theory represents the re-
mains of the so-called "classical natural
law" of the eighteenth century which had
already been rejected on the Continent
and was rapidly losing favor in America.
Like proponents of historical jurispru-
dence, though for different reasons, they
maintained that law could not be made
but could only be found, the method of
finding it being different. Also like the
historical school, they doubted the pos-
sibility of creative legislation.
A third school which gained accept-
"FRIEDMANN, LEGAL THEORY 129 (2d ed.
1949). Friedmann cites the Hayward English
translation of Savigny as follows: ". . . the
sum therefore of this theory is that all law is
originally formed in the manner in which in
ordinary, but not quite correct language, cus-
tomary law is said to have been formed, i.e.,
that it is first developed by custom and popular
faith, next by jurisprudence, everywhere there-
fore by internal silently operating powers, not
by the arbitrary will of a law giver." Cf.
POUND, op. cit. supra note 9, at 115 (1938); 8
ENCYC. Soc. Sci. 477-92 (1932).
128 ENCYC. Soc. Sci. 482 (1932); cf. PoUND,
op. cit. supra note 9; POUND, THE SPIRIT OF
THE COMMON LAW 151 (1921).

ance among many jurists was analytical
jurisprudence, of which Bentham was the
founder. Like Austin's mechanical juris-
prudence, the analytical school consid-
ered positive law to be self-sufficient,
divorced from any concept of natural law,
ethics, or the other social sciences. Tra-
ditionally the analytical school has had
unlimited confidence in man's ability to
legislate, and its advocates have always
favored codification. However, in the
last third of nineteenth century America,
Bentham's followers began to doubt that
we could add to or produce human hap-
piness by legislation. Consequently, they
developed what Pound calls a "juristic
pessimism" substantially the same as the
historical and philosophical schools. It is
a curious phenomenon that the different
schools by different paths, arrived at the
common conclusion that constructive leg-
3
islation was impossible?
Just before the turn of the century,
when Pound came to the bar, pragmatism
was coming into its own as the dominant
American philosophy. Initiated by
Charles Peirce, developed and popular-
ized by William James, and brought to
13 POUND, THE SPIRIT OF THE COMMON LAW
151 (1921). "Five types of philosophy of law
in the nineteenth century are of significance
for our present purpose. We may call those
who adhered to them the metaphysical school,
the historical school, the utilitarians, the
positivists and the mechanical sociologists. It
is a striking example of the way in which the
same conclusion may sustain the most divergent
philosophical premises that all of these arrived
ultimately at the same juristic position by
wholly diverse routes and from the most diverse
starting points, so that the futility of conscious
effort to improve the condition of humanity
through the law and the conception of justice
as the securing of the maxims of self-assertion
become axioms of juristic thought." Id. at 151.
13 CATHOLIC LAWYER, SPRING 1967
completion by John Dewey, pragmatism
has dominated the philosophical field for
more than half a century. Dean Pound
has frequently pointed out that legal
theory is very resistant to change and
usually lags a generation behind changes
in philosophical ideals. This was also
true of pragmatism, which had not seri-
ously affected juristic thinking at the turn
of the century. However, with the elo-
quent influence of Oliver W. Holmes,
pragmatism soon became the dominant
legal philosophy. More recently prag-
matism has divided into many, and often
contradictory, branches. The most vocal
contemporary group is the school of legal
realism, a name which Pound charac-
terizes as a boast rather than a descrip-
tion.14 This group did not merit serious
consideration when Pound first began his
career, but they are introduced here be-
cause much of his subsequent writing is
concerned with them. The realists deny
the efficacy not only of natural law and
positive law, but further they repudiate
the principle of judicial precedent, which
is the very cornerstone of the common-
law system.15 For them there is no law
except the judge's decision in the individ-
dual case, and that decision is law for
that case alone, not being drawn from
previous cases and not affecting future
cases.
14 POUND, JUSTICE ACCORDING TO LAW 63
(1951); cf. Pound, The Call For a Realistic
Jurisprudence, 44 HARv. L. REV. 697 (1931).
15 GARLAN, LEGAL REALISM AND JUSTICE 20-21,
24, 42 (1941). "A right-is an affair of the
future, and for the individual who claims the
right it is an affair of probability." Id. at 93.
Cf. FRANK, LAW AND THE MODERN MIND
(1930).
RoscoE POUND
In the light of this review, however
brief, of his intellectual environment we
can now pose the problems which Pound
saw and to the correction of which he
set his mind and his pen. Some of
these problems are not original with
Pound or peculiar to America, but as
ancient as law itself. Others, however,
are a peculiar product of the time and
place.
The first problem, which he calls the
"perennial problem" of law because it
goes back to the very beginnings of law,
has two aspects, but because of their
close association they can be, and are,
treated as one. These two aspects are,
first, the general security versus the in-
dividual life, and secondly, the need for
stability versus the need for change. Dif-
ferent legal theories at different times
have maintained one of these at the ex-
pense of the other. Pound feels that these
preferences cannot be maintained. In
America, during the last century, the gen-
eral security was preferred. In the pres-
ent century, there is a tendency to prefer
the individual life.' The problem is to
have a legal system which gives recogni-
tion to one without destroying the other.
The formalists and analytical school pro-
tected the general security by providing
in advance for every eventuality, but they
gave no consideration to the individual
offender; the law had to be applied me-
10 POUND, AN INTRODUCTION TO THE PHILOS-
OPHY OF LAW 96 (1922). "The last century
preferred the general security. The present
century has shown many signs of preferring
the individual moral and social life. I doubt
whether such preferences can maintain them-
selves." Ibid. Cf. POUND, CRIMINAL JUSTICE
IN AMERICA 38 (1930).
chanically. Contrariwise the historical
school, and even more so the realists,
consider only the individual case, thereby
endangering the general security.
Considering the problem from the
viewpoint of stability versus change, the
alignment is almost the same. For the
formalists and analytical jurists the per-
fect code is valid for all times. For the
historians and realists there is only
change.' 7 Stability is required so that
men may plan a course of action with a
reasonable expectancy of what course the
law will take. It is particularly true in
economic fields that men wish to act with
confidence that their operations of today
will not be judged illegal tomorrow. At
the same time the law may not be so
rigorous as not to accommodate itself to
the changes in society which are con-
stantly taking place.
There were other problems, more pe-
culiar to the time and place, in Pound's
mind, not only in his famous St. Paul
address, but in much of his subsequent
speaking and writing. The first of these,
already intimated, was what he calls
"juristic pessimism." 18 The various
schools of jurisprudence, from diverse
premises, arrived at the common conclu-
sion that legislation is impossible or use-
less. This give-it-up philosophy generated
the attitude that you cannot do anything,
therefore do not try to do anything.
Against this attitude Pound has been a
relentless foe.
Secondly, a major problem for Amer-
ican jurisprudence was created by the
17 Cf. FRANK, op. cit. supra note 15.
18 Cf. POUND, THE SPIRIT OF THE COMMON
LAW (1921).

enormous changes in the social and eco-
nomic order. The law, as received into
America and developed during the form-
ative era, was ideally adapted to a pio-
neer, agricultural society. But by the turn
of the century the era of expansion and
frontier was rapidly being passed and the
country was becoming an urban, indus-
trial society. Changes in law had not
kept pace with the changes in the struc-
ture of society. 19
A third problem which he attacked was
the inadequate education of the legal pro-
fession. One could with reason cite
Pound's own biography as indicative of
the meager requirements for admission
to the bar. That he became the most
eminent among the legal scholars is a
tribute to his own initiative and genius
and not to the demands of the legal pro-
fession. That these demands were not
exacting can be seen from the fact that
he was admitted to the bar before reach-
ing the age of twenty after having already
begun a career as a botanist. In the be-
ginning of American legal history this
was not accidental but part of a policy.
An excessive fervor for democracy and
universal equality fostered the idea that
no professional class should be set apart;
every profession should be accessible to
all.20 He cites examples of blacksmiths,
farmers and common laborers who were
justices of state supreme courts . 1 The
19 POUND, THE FORMATIVE ERA OF AMERICAN
LAW 98 (1938); POUND, CRIMINAL JUSTICE
AND THE COMMON LAW 19 (1930);
THE SPIRIT OF THE COMMON LAW
(1921).
20
POUND, THE FORMATIVE ERA OF
LAW 8 (1938).
21 Ibid.
13 CATHOLIC LAWYER, SPRING 1967
practice of apprentice-training for lawyers
persisted well into the present century,
and almost anybody could serve a term
as a clerk in an attorney's office and then
go into practice for himself. 22 The situa-
tion reached such proportions as to
prompt Mr. Justice Miller to remark that
the prime factor in the formation of our
law was ignorance.23
A fourth problem is seen in the in-
adequate and poor legislation provided
by the lawmaking bodies of our govern-
ment. Reasons for this legislative inade-
quacy are various, but certainly one rea-
son was the traditional common-law
attitude toward legislation. The common-
law jurist is wont to give very little recog-
nition to legislative law, or, at best, to
interpret it very strictly as applying to
the particular case in point and not as
providing a point of departure for legal
reasoning. This attitude in turn led to
legislative irresponsibility, prompting leg-
islators to give only skeleton rules or
directives, the details of which were to
be worked out by judicial decision; or
they turned out laws which were prac-
tically unenforceable. Another reason
can be found in a tendency of the legis-
lative branch to meddle in judicial func-
tions during the very early period of
legal history. The net result was a grow-
ing popular distrust of legislatures and a
turning to the judiciary not only for
judgment but also for making law. Judi-
cial empiricism became the common man-
24
ner of lawmaking.
POUND,
ch. 5
22POUND, CRIMINAL JUSTICE IN AMERICA 145
AMERICAN (1930).
23 POUND, op. cit. supra note 20.
24 POUND, op. cit. supra note 20, at 39, 49, 59.
ROSCOE POUND
Related to this difficulty is a fifth prob-
lem of more recent origin. It is what
Pound calls administrative or executive
justice as contrasted with judicial justice.
In recent years, and particularly in the
last two decades, he sees a growing, and
undesirable, tendency for the executive
branch of the government to assume
many functions belonging properly to the
judiciary.25 This is seen as undesirable
because the executive branch is not ex
officio qualified by training and experi-
ence for the judicial functions. More im-
portant, he sees in administrative justice
26
a tendency towards absolutism.
Finally, a sixth problem requiring at-
tention is the tendency, developed in the
last half of the last century, to mix law
and politics. Another name for the same
problem is the elective judiciary. 27 He
can see no correlation between a man's
qualifications to act as a judge and his
ability to influence voters to elect him to
the position of a judge. 28 The general
acceptance of the elected bench in state
and local jurisdictions has had an unde-
sirable effect on the administration of
justice. 29 The desire to please the voter
or political patron whose support can in-
sure the judge's position is too frequently
an impediment to justice.
Other problems could be considered,
25 POUND, JUSTICE ACCORDING TO LAW 76-78,
83 (1951); cf. POUND, NEW PATHS OF THE
LAW ch. 3 (1950); POUND, THE FORMATIVE
ERA OF AMERICAN LAW (1938).
20 POUND, JUSTICE ACCORDING TO LAW 76-78,
83 (1951).
27 POUND, CRIMINAL JUSTICE IN AMERICA
(1930); cf. POUND, THE FORMATIVE ERA
AMERICAN LAW (1938).
28 Ibid.
29 ibid.
and their omission is not to be considered
as granting them a slight importance.
The purpose here is to mention the main
problems which Pound attempted to solve
as a background against which to view
his theories on law. Further it is felt
that almost any other problem that might
be mentioned could be subsumed under
one of those already indicated. It should
not be expected that our author will sin-
gle out each of these problems for in-
dividual treatment. Rather does he at-
tempt a solution that will strike at the
roots of all of them simultaneously.
In studying his predecessors Pound saw
that all the nineteenth century schools
were subject to the common criticism of
attempting to construct a science of law
solely in terms of law and on the basis
of law, divorced from all other phe-
nomena of social control and civiliza-
tion. 0 For him a legal science, in order
to meet the needs of a changing society,
must give up its exclusiveness and work
in closer association with the other social
sciences.3' It must view law in all of its
senses in relation to the whole problem
of social control. 32 The social purposes
of law must be stressed more than the
sanctions, for law is to be regarded as a
social institution which can be improved
by intelligent effort. 3 3 To discover the
best means of directing and furthering
efforts to improve the law, the jurist must
30 Pound, Fifty Years of Jurisprudence (pt. 1),
51 HARV. L. REV. 444 (1938).
32 Pound, Fifty Years of Jurisprudence (pt. 2),
185 52 HARV. L. REV. 777, 812 (1938).
OF 32 Ibid.
3' Pound, The Scope and Purpose of Sociolog-
ical Jurisprudence (pt. 3), 25 HARv. L. REV.
489 (1912).

be concerned with a wide range of
studies, and not just of law. This re-
quires a study of the actual effects of
legal institutions and doctrines; a study
of the means of making legal rules effec-
tive; a sociological legal history, which is
a study not only of how doctrines have
evolved and developed, considered solely
as jural materials, but of what social ef-
fects the doctrines of law have produced
34
in the past and how they produce them.
The study of legal history is very import-
ant to see what effects the jurists desired
to produce, the effects actually produced
and the method used to produce the de-
sired effect. The functional attitude,
which is the study not only of what legal
materials are and how they came to be,
but also of what they aim to effect and
how they work, is fundamental in Pound's
legal theory. Also, there must necessarily
be intensive study of philosophy and psy-
chology; in order for a legal science to
be valuable it must be consistent with
the best of modem philosophy and psy-
chology.3"
Pound pursued this course of studies
very seriously. He studied all the con-
temporary jurists, both of the English
common-law jurisdictions and the con-
tinental civil law systems, taking freely
from the most diverse schools of thought
the materials which he found useful; he
considered that there can be many ap-
proaches to juristic truth and that each
3.Pound, supra note 33, at 513-14; cf. POUND,
OUTLINES OF LECTURES ON JURISPRUDENCE
32-34 (5th ed. 1943).
3 Pound, A Call for a Realistic Jurisprudence,
44 HARv. L. REV. 697, 710-11 (1931); cf.
POUND, OUTLINES OF LECTURES ON JURIS-
PRUDENCE 35 (5th ed. 1943).
13 CATHOLIC LAWYER, SPRING 1967
can be significant to a particular prob-
lem. 36 Nor was legal history neglected;
he studied widely the legal systems of
the past. 37 In like manner he gave him-
self to the study of modem philosophy,
psychology and sociology. In sum, there
is scarcely anyone among modern and
contemporary sociologists, philosophers
and jurists to whom he does not owe,
and acknowledge, a debt. 8
It was in the light of these extensive
studies that Pound developed his system
of sociological jurisprudence. It presents
a curious union of many diverse, and
often contradictory, philosophies of law.
But to this peculiar union he does give a
fundamental unity based on the purpose
of law.
The Nature of Law
Before entering upon a detailed discus-
sion of the nature of law according to
Pound, it is necessary first to have a clear
notion of our subject. It is to Pound's
credit that, among English-speaking jur-
ists, he has done much in clarifying the
meaning, or diverse meanings, of "law."
Frequently among treatises on law we
find the term applied indiscriminately to
any one of a number of possibilities with-
out distinction.
For Pound "law" has three meanings:
first, it signifies the legal order, i.e., the
MPound,
6 supra note 35, at 711.
37 POUND, INTERPRETATIONS ON LEGAL HISTORY
(1923).
3sPound, Fifty Years of Jurisprudence (pts.
1-2), 51-52 HARv. L. REV. 444, 777 (1938);
Pound, The Scope and Purpose of Sociological
Jurisprudence (pt. 3), 25 HARv. L. REV. 489
(1912); cf. Thomas Cowan's article in INTER-
PRETATIONS OF MODERN LEGAL PHILOSOPHIES:
ESSAYS IN HONOR OF ROSCOE POUND 130-42
(Sayre ed. 1947).
RosCOE POUND
ordering of human conduct through the
systematic application of the force of
politically organized society. In this sense
it is called a regime of social control.
Secondly, it means the sum of the au-
thoritative grounds for judicial and ad-
ministrative decisions in such a society.
Thirdly, it may mean what is called the
"judicial process." A fourth meaning can
be added since the term "law" can be,
and often is, used to mean all three of
39
the other meanings just mentioned.
When we speak of a "science of law,"
we are using the term in the second
sense. It is in this sense that Dean Pound
uses the term in analyzing the science of
law,40 and it is likewise in this sense that
it will be used here unless otherwise in-
dicated.
Used in this second sense as the body
of authoritative grounds for decisions,
law is not a simple concept. There are
contained within it three elements: pre-
cepts, technique, and ideals.4 1 Further-
3,Pound, A Comparison of Ideals of Law, 47
HARV. L. REV. 1-2 (1933); cf. POUND, JUSTICE
ACCORDING TO LAW 48 (1951); Pound,
My Philosophy of Law, MY PHILOSOPHY OF
LAW, CREDOS OF SIXTEEN AMERICAN SCHOLARS
(1941).
40 See POUND, JUSTICE ACCORDING TO LAW
49 (1951): "The second sense is the one in
which Lawyers habitually use the term 'law.'
It is the meaning which the word has borne
since the classical Roman jurists and the one
to which we may well restrict it in the science
of Law." Ibid.
4) POUND, op. cit. supra note 40, at 50.
"[Alnalytical jurists had in mind the precept
element of law . . . historical jurists had in
mind very largely the [technique] traditional
art of the lawyer's craft . . . and philosophical
jurists had in mind the ideal element in law.
Today we may very well give up these dis-
cussions. All three elements should be con-
sidered and together they constitute the back-
more, the element of precepts contains
within itself four distinct concepts. First,
there is the rule or precept in the strict
sense, which determines a detailed set of
consequences for a determined state of
facts. Secondly, there are principles or
authoritative starting points for legal rea-
soning. Thirdly, there are legal concep-
tions or authoritative categories into
which cases are fitted, and by reason of
which certain rules and principles become
applicable, as, for example, sale and
trust. And, fourthly, there are standards42
or measures of conduct prescribed
by law from which one departs at his
own peril, as, for example, the standard
of due care not to cause an unreasonable
risk of injury to others.4
In speaking of law in this second sense
there is a temptation to think only of
precepts, and then only of the rules or
precepts in the strict sense. But in truth
the element of technique, or "art of the
lawyers' craft," and the element of ideals
are quite as authoritative and no less im-
portant. It is the element of technique
which distinguishes the two great modern
systems of the law.4 4 The technique of
the common-law lawyer consists in reason-
ing by analogy from reported judicial de-
cisions while considering statutes as fur-
nishing a rule for the class within its pur-
ground of juristic writing and judicial decision."
8 ENCYC. Soc. Sci. 486 (1932).
4 POUND, op. cit. supra note 40, at 58. "There
is a characteristic element of fairness or reason-
ableness in standards which makes them a
point of contact between law and morals." Ibid.
43 Id. at 56-58. See, e.g., POUND, SOURCES AND
FORMS OF LAW (1946); 8 ENCYC. SOC. SCI.
477-92 (1932).
44POUND, op. cit. supra note 40, at 50-51;
POUND, THE TASK OF LAW 47-48 (1944).

view and not as a starting point for legal
reasoning. The civil law, on the contrary,
reasons by analogy from legislative pre-
cepts while considering court decisions as
establishing only one precise point for
the case in litigation and not as a point
of departure for legal reasoning.
Like technique, the ideal element does
not determine a detailed set of conse-
quences for a detailed state of facts. But,
in the deciding of causes, it is of great
importance and is, indeed, decisive in
new cases when there is necessity of
choosing from among equally authorita-
tive principles. This ideal element is "a
picture of the social order of the time
and place, a legal tradition as to what
the social order is and so as to what is
the purpose of social control, which is
the authoritative background of interpre-
tation and application of legal pre-
cepts." 45 The ideal element, in that it
presents a picture of what the legal order
ought to be and what it ought to achieve,
is undoubtedly the most important ele-
ment.4 6 This is just, since in practical
science the end is first in intention and
is an element in the premises of the prac-
tical discourse. As we shall have occa-
sion to see in greater detail later, the
ideal element has a preponderant role
when there is question of weighing inter-
ests to determine which one shall be
45 POUND, JUSTICE ACCORDING TO LAW 54
(1951); POUND, THE FORMATIVE ERA OF AMER-
ICAN LAW 28-29 (1938); Pound, A Comparison
of Ideals of Law, 47 HARV. L. REV. 2-3
(1933); Pound, The Ideal Element in American
Judicial Decision, 45 HARV. L. REV. 147-48
(1931); Pound, The Theory of Judicial
Decision, 21 HARV. L. REV. 958 (1923).
46 Pound, The Theory of Judicial Decision, 21
HARV. L. REV. 958 (1923).
13 CATHOLIC LAWYER, SPRING 1967
recognized and to what extent it shall be
recognized.
Considering the elements just discussed
we can define law as "a body of authori-
tative precepts, developed and applied by
an authoritative technique in the light of
authoritative traditional ideals." 47 This
is a definition of law in its second sense,
and is the way it is used in the science
of law. It is, therefore, this sense of the
word with which we are chiefly con-
cerned. However, at this time it would
not be without value to examine other
meanings of law given by Pound from
different points of view. Since it is ex-
tremely difficult to find a definition in
the writings of Dean Pound, the nearest
approach is descriptions from different
points of view. Besides the one just given
we find three others that consistently ap-
pear in Pound's writings.
Firstly, as a regime, law is defined as
a highly specialized form of social control
in a politically organized society exercised
through the systematic and orderly ap-
48
plication of the force of such a society.
It is the force of politically organized so-
ciety which constitutes the formal element
of law.
From still another point of view, which
might aptly be called the origin, law is
defined as experience developed by rea-
son and reason tested by experience; it
is experience organized and developed by
reason, authoritatively promulgated by
the lawmaking organs of society and
47POUND, JUSTICE ACCORDING TO LAW 50
(1951).
4 POUND, JUSTICE ACCORDING TO LAW 48
(1951); Pound, My Philosophy of Law, My
PHILOSOPHY OF LAW, CREDOS OF SIXTEEN
AMERICAN SCHOLARS 249 (1941).
Roscoe POUND
backed by the force of that society.4 9
The importance of reason is insisted upon
throughout, but it is not reason operating
in a vacuum. It must be reason tested
and guided by experience.
Finally, viewed with regard to its end,
law is defined as a task of social en-
gineering designed to eliminate friction
and waste in the satisfaction of unlimited
human interests and demands out of a
limited store of goods in existence.50 This
is undoubtedly the most important aspect
of Pound's doctrine of law. He insists
always that law cannot be judged with
reference to itself, as the analytical school
judges, or with respect to an ideal picture
of law, as the formalists do, but must
be judged functionally with respect to its
end. The relationship between this view
of law and the ideal element already dis-
cussed is readily seen, since it is the ideal
element which proposes the end which
the law should effect and it is with a
view to the ideal element that demands
and interests are classified and either
granted or denied recognition.
Having seen four definitions of law
from different points of view, we can
make a synthesis and achieve a composite
definition comprising all the meanings
given by Pound: Law is a system of
guides to judicial decisions, including pre-
cepts, technique, and ideals, found by
reason, tested by experience, promulgated
by the authority of politically organized
society and backed by the force of that
society, for the purpose of securing the
maximum of human interests and satisfy-
ing the maximum of human demands
49 POUND, THE TASK OF LAW 62 (1944).
5( POUND, SOCIAL CONTROL THROUGH LAW
(1942); 8 ENCYC. Soc. Sci. 487 (1932).
with a minimum of friction and waste.
This composite definition reveals essen-
tially the nature of law according to
Pound, but it must be elaborated in a
little more detail. He constantly refers to
law as a process of social engineering.
This, however, is somewhat misleading.
The analogy with engineering is not im-
mediately evident. Engineering is a prac-
tical art which seeks to bring into con-
crete existence a plan which has been
conceived and drawn up in detail in ad-
vance. It is difficult to see that Pound
looks upon law as striving to achieve an
orderly plan which has been well for-
mulated in advance. He expressly denies
that law is a reflection of divine reason
governing the universe or of a God-given
order.5 1 Rather it is a process of social
adjusting; a system of practical com-
promises of conflicting and overlapping
interests."2
In a world in which there are an un-
limited number of human demands and
desires but where the means of satisfying
those demands are limited it is inevitable
that conflicts should arise. These conflicts
are resolved by giving legal effect to one
interest which thus becomes a legal right,
or simply a "right." In law we must
reconcile and adjust these conflicting in-
terests or claims so as to secure as much
of the totality of them as we can.5
51 Pound, The Theory of Judicial Decision (pt.
3), 21 HARV. L. REV. 594 (1923).
52 POUND, THE FORMATIVE ERA OF AMERICAN
LAW 125-26 (1938).
53 POUND, JUSTICE ACCORDING TO LAW 31
(1951); cfI. Pound, My Philosophy of Law, MY
PHILOSOPHY OF LAW, CREDOS OF SIXTEEN
AMERICAN SCHOLARS 259 (1941); Pound, Philo-
64 sophical Theory and International Law, 1
BIBLIOTHECA VISSERIANA 89 (1923).

It is incorrect, Pound tells us, to speak
of rights before interests have been de-
fined, delimited, and recognized by law.
Once this has been done, "rights" are the
means by which interests are secured.
Theories of natural right erred in con-
fusing the interest which the law should
secure with the rights by which it is se-
cured. For Pound a natural right is
nothing other than an interest which we
think should be secured, a demand which
we think ought to be satisfied.5 4 An in-
terest exists independently of any law
and is not a creature of the state, but
it is an error to think that it has any
binding force until defined, delimited, and
recognized by the law.
In the light of what principles are these
interests classified, defined, delimited and
recognized? Pound renounces any pre-
tense of immutable principles or absolute
judgments. For him it is a matter of
compromise of conflicting interests.5 5 So
long as a satisfactory compromise can be
reached and we may satisfy a social want
without a disproportionate sacrifice of
other interests there are no natural, neces-
sary reasons why we should not do so.
Not all interests can be satisfied, at least
not fully; where interests of equal valor
are in conflict they must be reconciled
5-4POUND, THE SPIRIT OF THE COMMON LAW
91-92 (1921).
55 "But I am skeptical as to the possibility of
an absolute judgment. We are confronted at
this point by a fundamental question of social
and political philosophy. I do not believe that
the jurist has to do more than recognize the
problem and perceive that it is presented to
him as one of securing all social interests so
far as he may, of maintaining harmony among
them that is compatible with the securing of
all of them." POUND, AN INTRODUCTION TO THE
PHILOSOPHY OF LAW 96 (1922).
13 CATHOLIC LAWYER, SPRING 1967
and compromised so that neither is fully
satisfied nor completely sacrificed.5
Pound has outlined an elaborate hier-
archical system of interests which are to
be recognized, or are pressing for recog-
nition. It is not our intention to enter
into the practical details of his legal
theory to too great an extent, but since
this theory of interests forms the central
core of his theory it must be presented at
least in summary form. The interests
which the law should recognize and to
which it should give effect are classified
in three major groups. They are social
interests, public interests, and individual
interests.5 7 An interest, for the purpose
of the law, is a claim or demand which
human beings make either as individuals
or in groups or associations and of which
the legal order must take account. Individ-
ual interests are those claims which in-
dividuals make as individuals and assert
in title of that individual life. Public in-
terests are those claims asserted in title
of life in politically organized society.
And, finally, social interests are those de-
mands and claims asserted in title of so-
cial life in civilized society; they are
treated as the claims of the entire social
5,"What I do say is, that if in any field of
human conduct or in any human relation the
law, with such machinery as it has, may satisfy
a social want without a disproportionate sac-
rifice of other claims, there is no eternal limi-
tation inherent in the nature of things, there
are no bounds imposed at creation, to stand
in the way of its doing so." POUND, Op. Cit.
supra note 55, at 97-98; cf. POUND, SOCIAL
CONTROL THROUGH LAW 78 (1942).
5 Pound, A Survey of Social Interests, 57
HARV. L. REV. 1 (1943); cf. POUND, THE TASK
OF LAW (1944); POUND, OUTLINES OF LEC-
TURES ON JURISPRUDENCE (5th ed. 1943);
POUND, SOCIAL CONTROL THROUGH LAW (1942).
This division is attributed to Ihering.
RoscoE POUND
group. 58 Not every claim that men might
make is necessarily or always in one of
these groups, but when they are com-
pared for the purpose of adjusting con-
flicts they must be compared with refer-
ence to the same group. In general, they
should be compared under the most gen-
eral form, i.e., social interests. 59 While
the law of the last century saw only in-
dividual interests, the law today is more
and more subsuming them to social in-
terests. Wherever a demand can be sat-
isfied if treated as a social interest rather
than an individual one, it should be con-
sidered a social interest. 60 For this rea-
son Dean Pound devotes most of his
planning to social interests as being the
more inclusive order.
The first of Pound's social interests is
the interest in the general security. This
is a claim that social life be secure against
forms of actions and courses of conduct
which threaten its existence. In its sim-
plest form, this interest is concerned with
the general safety as the highest law, but
it extends to such forms as interest in
general morals, general health, peace,
order, security of transactions and of ac-
quisitions.
Second is the social interest in the
security of social institutions, i.e., the
claim that fundamental institutions of so-
cial life be secure from courses of con-
duct that threaten their existence or im-
58 Pound, A Survey of Social Interests, 57 HARV.
L. REV. 1-2 (1943).
59 Id. at 2-3.
60 Pound, A Comparison of Ideals of Law,
47 HARv. L. REV. 15 (1933); cf. POUND,
OUTLINES OF LECTURES ON JURISPRUDENCE 32-
34 (5th ed. 1943); Pound, The Scope and
Purpose of Sociological Jurisprudence (pt. 3),
25 HARv. L. REV. 489 (1912).
pair their efficiency. This includes inter-
est in the security of domestic institutions,
religious institutions, political institutions,
and, more recently, economic institutions.
Pound's third social interest is in the
general morals, or the claim that social
life in civilized society be secure against
forms of action offensive to the moral
sentiments of the general body of individ-
uals therein for the time being. This in-
cludes policies against such misdemeanors
as dishonesty, corruption, gambling and
things of immoral tendency.
Fourthly, there is the social interest in
the conservation of social resources, or
the claim that the goods of existence shall
not be wasted; that courses of conduct
which tend needlessly to destroy these
goods be restrained. This refers chiefly
to common property which is used but
not owned by individuals, and is closely
related to the interest in the protection
and training of dependents and defectives.
Fifth is the social interest in general
progress, or the demand that the develop-
ment of human powers and of human
control over nature for the satisfaction of
human wants go forward; the claim that
social engineering be increasingly and
continuously improved for the develop-
ment of human powers. This includes
interest in economic, political and cul-
tural progress.
Sixth, and last, is the social interest in
the individual life. This is in many ways
the most important. It is the claim that
each individual be able to live a human
life in civilized society according to the
standards of that society.
Such, in brief, are the social interests
which are recognized or are coming to

be recognized by the law.6 1 When looked
at functionally, and it is in this way that
it must be viewed, 6 2 the law is an attempt
to satisfy, to reconcile, these conflicting
and overlapping interests and claims
either through securing them directly, or
through securing certain individual inter-
ests so as to give effect to the greatest
total of interests, or the interests that
weigh most, with the least possible sac-
rifice of the scheme of interests as a
whole.
The public and individual interests are
less elaborately treated by Pound and the
reason is not difficult to divine. From
the social interests just presented it is
possible to see how most of the public
and individual interests could be sub-
sumed to the social interests. And where
this is possible, he finds it desirable that
it should be so done. 63 Yet he does not
neglect the public or individual interests
altogether. The public interest is, first,
the interest of the state as a juristic per-
G6The essentials of this summary are taken
from Pound, supra note 58. They may also
be found in: POUND, OUTLINES OF LECTURES
ON JURISPRUDENCE (5th ed. 1943); POUND, SO-
CIAL CONTROL THROUGH LAW (1942); POUND,
THE SPIRIT OF THE COMMON LAW (1921);
cf. Patterson, Pound's Theory of Social In-
terests, INTERPRETATIONS OF MODERN
PHILOSOPHIES: ESSAYS IN HONOR OF
POUND (Sayre ed. 1947); FRIEDMANN,
THEORY 230-31 (2d ed. 1949).
62Pound, Fifty Years of Jurisprudence (pt.
2), 52 HARV. L. REV. 777, 812 (1938); POUND,
OUTLINES OF LECTURES ON JURISPRUDENCE 32-
34 (5th ed. 1943); POUND, INTERPRETATIONS
OF LEGAL HISTORY (1923);
Pound, The Call
for a Realistic Jurisprudence, 44 HARV. L. REV.
697, 710 (1931); Pound, The Scope and Pur-
pose of Sociological Jurisprudence (pt. 3), 25
HARV. L. REV. 489 (1912).
63 Cf. POUND, CRIMINAL JUSTICE IN
145 (1930).
13 CATHOLIC LAWYER, SPRING 1967
son. This interest includes the claim to
integrity, freedom of action and honor of
the state as a moral person, as well as
the claim of the state as a corporation to
hold property for corporate purpose.
And, secondly, there is the interest of
the state as the guardian of social inter-
ests.6" But, he concludes, to the extent
that the public interest is one only of the
dignity of the sovereign, it ought to give
way under modern conditions."5 As al-
ready mentioned, whenever possible the
interests should be subsumed to the social
interests as the more inclusive order. In-
dividual interests are given a still more
summary treatment. Most of the interests
which formerly were granted as belonging
to individuals as individuals are now, he
says, subsumed under social interests.
Thus the right of the individual to pos-
sess property is taken as a social interest
in security of possessions. 66 The right to
expect exact performance of promises and
contracts is subsumed to the social in-
terest in security of contract and transac-
tions. 67 However, the common law is
coming more and more to recognize the
6
binding force of such promises.
It remains to be seen upon what basis
these interests are so classified and either
LEGAL
recognized or denied recognition. Pound
ROSCOE believes that the basis for such a classi-
LEGAL
fication is what he calls the presupposi-
64Pound, A Survey of Public Interests, 58
HARV. L. REV. 910 (1945).
65Id. at 925.
66 Pound, A Survey of Social Interests, 57
HARv. L. REV. 1, 20 (1943); cf. POUND, AN
INTRODUCTION '10 THE PHILOSOPHY OF LAW
234 (1922).
67 Pound, supra note 66; cf. POUND, op. cit.
AMERICA supra note 66, at 237.
684 ENCYC. Soc. ScI. 42 (1932).
ROSCOE POUND
tions of civilization, or, the "jural postu-
lates." These are the reasonable expec-
tations which all men have in civilized
society. They are the minimum require-
ments in order that that society may
survive.69 Stated briefly these postulates
are, first, in civilized society men must
be able to assume that men will commit
no intentional aggressions upon them.
Secondly, we must assume that men may
control for beneficial purposes what they
have discovered and appropriated for
their own use, created by their own labor,
or acquired according to the existing so-
cial and economic order. Third, we must
assume that those with whom we deal
will act in good faith, making good their
promises, carrying out their undertakings
according to the expectations of the mor-
al sentiment of the community, and re-
storing specifically or by equivalent what
comes to them by mistake or in any way
whereby they receive at another's expense
what they could not expect to receive
under other circumstances. Fourth, we
must assume that men will act with due
care not to cast on others an unreason-
able risk of injury. And, finally, we as-
sume that those who keep things, such as
animals, which are likely to get out of
hand and do damage will restrain them
within proper bounds. 0
69 POUND, AN INTRODUCTION TO THE PHILOSOPHY
OF LAW 169-79, 188 (1922); cf. POUND, IN-
TERPRETATIONS OF LEGAL HISTORY 148-49
(1923); POUND, SOCIAL CONTROL THROUGH LAW
112 (1942); POUND, THE SPIRIT OF THE COM-
MON LAW 82 (1921). Pound admits borrow-
ing these postulates from Kohler. Cf. KOHLER,
PHILOSOPHY OF LAW 83 (1914).
7O POUND, AN INTRODUCTION TO THE PHILOSOPHY
OF LAW 169-79, 188 (1922); cf. FRIEDMANN,
LEGAL THEORY 233 (2d ed. 1949); De Sloov~re,
In the light of these "jural postulates"
the various interests which press for rec-
ognition are examined, defined, delimited
and, if recognition is granted, they are
secured by the law.
The End of Law
What the end of law should be accord-
ing to Pound has already been briefly
intimated but since it plays such a pre-
ponderant role in his legal theory it must
receive greater consideration than already
given.
Analyzing the history of law Pound
finds three theories of the end of law
that have been held successively in legal
history and a fourth which is beginning
to assert itself. The first, and simplest,
which existed in the period of primitive
law, was that of keeping the peace at
any price.71 Under the influence of
Greek philosophers this was superseded
by the second theory which was one of
preserving the status quo. This theory
maintained itself through the period of
classical Roman law, and, except for a
brief interruption of primitive law under
German influence, through the Middle
Ages. 72 According to this theory, the
end of law is to insure social stability by
putting everybody in his place and keep-
ing him there. Emphasis is on the social
order, with the individual destined to
serve that order at all costs to personal
liberty.
Jurisprudence,
ANN. SURVEY AM. L. 913, 920-
21 (1942); POUND, INTERPRETATIONS OF LEGAL
HISTORY 148-49 (1923).
11POUND, AN INTRODUCTION TO THE PHILOS-
OPHY OF LAW 72-74 (1922); POUND, THE SPIRIT
OF THE COMMON LAW 85-87 (1921).
72 POUND, AN INTRODUCTION TO THE PHILOSOPHY
OF LAW 78-79 (1922).

With the beginning of law in the
modern sense, after the Protestant Revolu-
tion, the emphasis shifted from society to
the individual. At first the purpose of
law was conceived as securing natural
rights, which got their warrant from the
inherent moral qualities of man; there
should be no restraint for any other pur-
pose. In the nineteenth century, this
mode of thought turned metaphysical with
juristic emphasis on individual conscious-
ness; the social problem was one of
reconciling conflicting human wills. Kant
had rationalized the law in these terms
as a system of principles or universal
rules applied to human actions whereby
the free will of each might coexist with
the free will of all others making a maxi-
mum of self-expression the end of law.
Hegel also emphasized liberty and
rationalized law as an idea of liberty
being realized in human experience.
Bentham considered law as a body of
rules laid down and enforced by the state,
the end of which was to secure a maxi-
mum of happiness conceived as free in-
dividual self-assertion. Spencer also
conceived of the function of law as
promotion, the liberty of each limited
only by the liberty of all. 73 In any of
these ways, the end of law was conceived
as that of securing the greatest possible
individual self-assertion.
Toward the end of the last century
and the beginning of the present, the
emphasis in juristic thinking began to
shift from human wills to human wants
or desires. Instead of thinking of the
73 POUND, op. cit. supra note 72, at 83-84;
POUND, THE SPIRIT OF THE COMMON LAW 87,
194 (1921).
13 CATHOLIC LAWYER, SPRING 1967
end of law as the maximum of self-
assertion jurists began to think of it as
the maximum satisfaction of wants and
interests. The problem for jurisprudence
became one of finding the criteria of the
relative value of interests.7 4 Pound adopts
this German Interessenjurisprudenz, de-
veloped from the ideas of Ihering, and
gave it its greatest elaboration in his
sociological jurisprudence.
Law is spoken of by Pound as one
75
very specialized form of social control.
As such, the end of law must ultimately
be the same as the entire system of social
control, the other agencies of which are
morals, religion, family and school. And
so he tells us that the end of law is, at
bottom, the end of social control.76 But
the other agencies of social control no
77
longer exercise an organized effect.
Hence, in modern society, law has be-
78
come the paramount agency.
74 POUND, op. cit. supra note 72, at 89;
POUND, JUSTICE ACCORDING TO LAW 19-20
(1951); cf. POUND, NEW PATHS OF THE LAW
4-5 (1950).
75Compare the definitions of law as found
in footnotes 48-50 supra.
76PoUND, My Philosophy of Law, My PHI-
LOSOPHY OF LAW, CREDOS OF SIXTEEN AMERICAN
SCHOLARS 250-52 (1941): "If, as lawyers must,
we look at law, in all of its senses, functionally
with respect to its end, as the end is at bottom
the end of social control, our science of law
cannot be self-sufficient. Ethics has to do with
another great agency of social control covering
much of the ground covered by the legal
order and having much to tell us as to what
legal precepts ought to be and ought to bring
about."
,7 POUND, SOCIAL CONTROL THROUGH LAW 21-
25 (1942).
78 POUND, op. cit. supra note 77, at 20: "In
the modern world law has become the par-
amount agency of social control. Our main re-
liance in the society of today is upon the force
of politically organized society."
RoscoE POUND

Now, we can ask, what is the end of
social control of which law is the para-
mount agency? It is defined as an ideal
of co-operation toward civilization, to
raising human powers to their highest
possible unfolding, to a maximum of
human control over external and internal
nature for human purposes.79 Pound is
speaking in the same vein when he refers
to law as giving external support to man's
social instincts as against his selfish,
middle of a road, which direct human
82
actions the way they ought to go. Still
using traffic regulations as an example, he
tells us that law must form habits of
proper behavior instead of waiting for
them to develop,89 even though the reason-
ableness of the law is not apparent at
once to all. In still other instances he
says that the end of law is justice, which
in turn is defined as "an ideal relation
among men." 84

aggressive instincts, approving the opinions Looked at functionally with respect to

of some last-century jurists who spoke of its end, which is the end of social control,
law and government as extensions of in- law is not self-sufficient. It depends
dividual self-control.,' Law, unlike the upon other agencies, especially ethics, to
laws of physical sciences which are point out what legal precepts ought to be
85
based on observation of what is, must be and what they ought to effect.
based on experience and observation of This presentation of the end of law
what ought to be, of how men ought to would be readily acceptable to any
conduct themselves in relation with scholastic philosopher and it is all found
others. 8 ' The law is compared to some in Pound's writings. However, he fre-
traffic regulations, such as lines in the quently contradicts these statements or
qualifies them until they have no mean-
151POUND, op. cit. supra note 77, at 127,
132: "An ideal of civilization of raising human ing, or at least, no acceptable meaning
powers to their highest possible unfolding of left. Thus the highest development of
the maximum of human control over external human powers 86 loses some of its lofty
nature and over internal nature for human
purposes .. "; Cf. POUND, A SURVEY OF SOCIAL appeal in his survey of social interests
INTERESTS 30 (1943): "Social interest in gen- when he goes on to explain that this fifth
eral progress, that is the claim . . . that the interest, which he calls the "social in-
development of human powers and of human
control over nature for the satisfaction of terest in general progress," 87 covers
human wants go forward, the demand that
social engineering be increasingly and continu- ." See also 8 ENCYC. Soc. Sci. 485
ously improved, as it were the self-assertion of (1932).
the social group toward higher and more com- 82 POUND, CRIMINAL JUSTICE IN AMERICA 29
plete development of human powers." (1930).
80 POUND, THE TASK OF LAW 25-26 (1944). 83 POUND, op. cit. supra note 80, at 65; cf.
81 POUND, op. cit. supra note 80, at 49; POUND, POUND, JUSTICE AcCORING To LAW 17 (1951).
SOCIAL CONTROL THROUGH LAW 32 (1942): 84 POUND, op. cit. supra note 80, at 19.
"But we are not dealing with physical nature, 85 POUND, SOCIAL CONTROL THROUGH LAW 62
as to which opinions of good and bad and (1942); Pound, My Philosophy of Law, MY
criticisms of its phenomena are irrelevant. We PHILOSOPHY OF LAW, CREDOS OF SIXTEEN
are dealing with phenomena in the domain and AMERICAN SCHOLARS 252 (1941).
under the control of the human will and that 8r Cf. note 9 supra.
it does not tell the whole story. Here the 87 POUND, A SURVEY OF SOCIAL INTERESTS 30
ultimate question is always what ought to be. (1943).

such major policies as freedom of prop-
erty, free trade and protection from
monopoly, free industry, and encourage-
ment of inventions, as well as a policy of
political progress through free criticism,
free education and the like.""
The conflict between selfish instinct
and social instincts 89 which law is to help
control is seen to be a conflict between
moral virtue and justice. The self-
assertive instincts are identified with in-
dividual moral development and the so-
cial instincts with justice. The two are
seen to be in essential conflict. Hence
law must maintain one set of moral
values against another.90
By justice as the end of law, Pound
does not mean an individual virtue; nor
does he mean the ideal relation among
men. Rather he means a regime, an
adjustment of relations and ordering of
conduct so as to satisfy the maximum of
88 Ibid.
89 Cf. note 10 supra.
0
' POUND, THE TASK OF LAW 25, 36 (1944):
"Undoubtedly there are inherent difficulties in
a regime of justice according to law. But we
must pay a price for order, security, and a
developed economic order. We must pay a
price for a balance of security, justice in the
sense of the ideal relation among men, and
morals in the sense of the highest individual
development. No one of these can be carried
out to a logical extreme at the expense of the
others. Free individual self-assertion-spontan-
eous free activity-on the one hand, and
ordered, even regimented cooperation, are both
agencies of civilization. A social order which
ignores and would repress either is not moving
toward the highest unfolding of human pow-
ers." Cf. POUND, JUSTICE ACCORDING TO LAW
21 (1951), citing Radbruch whom Dean Pound
had just referred to as the ". . . foremost phi-
losopher of law . . . in the present generation"
as saying there is an irreducible antimony be-
tween justice, morals and security.
13 CATHOLIC LAWYER, SPRING 1967
human claims and desires with a mini-
mum of friction and waste.9 1 This tells
us not only what law does but also what
92
it ought to do.
Sources of Law
In considering the question of the
sources of law there are two major prob-
lems. First, there is question of the
proximate authoritative sources from
which the existing legal precepts are
drawn. Secondly, there is the issue of
the source of the authority of the law as
such. 93 The second of these poses three
distinct problems: the immediate practical
source, the ultimate practical source, and
the ultimate moral source of the authority
of law.9 4 In dealing with the first prob-
lem the term "source" has been, and still
is, used to mean at least four different
things: the authoritative texts which are
the bases of juristic and doctrinal devel-
opment; the "raw materials" from which
judges derive the grounds for deciding
cases; the formulating agencies by which
rules and principles are shaped; and the
literary shapes in which precepts are
found. This last Pound prefers to call
"form" rather than "source" of law. 95
All of these answer the questions of how
and by whom the content of the precepts
has been worked out, and whence they
l POUND, SOCIAL CONTROL THROUGH LAW 64-
65 (1942).
92Pound, My Philosophy of Law, My Pm-
LOSOPHY OF LAW, CREDOS OF SIXTEEN AMERICAN
SCHOLARS 252 (1941).
o9 POUND, SOURCES AND FORMS OF LAW 3
(1946).
94 POUND, SOURCES AND FORMS OF LAW 5
(1946); POUND, SOCIAL CONTROL THROUGH LAW
51 (1942).
!) POUND, op. cit. supra note 93, at 3-5.
RoscOE POUND
derived their content as distinct from
their force and authority. 96
A. Source of Content
Considering the factors to which legal
precepts owe their content, Pound finds
there are six: usage, religion, moral and
philosophical ideas, adjudication, scientific
discussion and legislation. 9
Usage becomes a source of law when
a rule or principle that has been worked
out and formulated by common usage is
given the authority of law by courts or
legislature. The usage of merchants is an
example. 98 Religion, in earlier stages of
legal development, was a principal
source. In modem law, particularly on
the Continent, the influence of the law
of the Church is still evident; 19 moral
and philosophical ideas have their in-
fluence not only in affecting old precepts
but also in shaping, or helping to shape
new ones. This is particularly true in
times when equity and natural law are a
predominant force and there is a tendency
to identify law and morals. 10 Adjudica-
tion gives rise to a tradition of judicial
action as usage gives rise to a tradition
of popular action. In civil law systems,
where legislative precepts rather than
judicial decisions form the starting point
for legal reasoning, a settled course of
decision may be a form rather than a
source of law. In common-law systems
a course of judicial decisions which has
only persuasive authority is a form rather
9CPOUND, op. cit. supra note 93, at 5.
07 POUND, op. cit. supra note 93, at 5-9.
98 Ibid.
90 POUND, THE SPIRIT OF THE COMMON
ch. 2 (1921); cf. Puritanism and the Common
Law, ANN. PROC. KAN. B. ASS'N (1910).
00 POUND, LAW AND MORALS (1924); Law and
Morals, ANN. PROC. W. VA. B. ASS'N (1915).
than a source. But if the decisions are
so well formulated that they are adopted
by a higher court they become authorita-
tive and so are a source of law. 0'
Scientific discussion is a source of law
when the discussions of text writers and
commentators are given formal authority
by being embodied in the decisions and
statutes of courts or legislatures. Doctrinal
writing has been a very important agency
in formulating our law. "While in form
our law is chiefly the work of judges, in
great part judges simply put the guinea
stamp of the state's authority upon pro-
positions which they found worked out
for them in advance. Their creative
work was often a work of intelligent
selection." 102 Finally legislation or direct
formulation of legal precepts by the law-
making organs of the state is an im-
portant source of law. This is a par-
ticularly important source in civil law
jurisdictions, while it is less so in com-
mon-law systems, and, in America, has
made no lasting contribution to law. 103
Briefly, the forms or literary shapes in
which the common law of the United
States are found authoritatively expressed
are seven: 1) decisions of old English
courts (before the American Revolution);
2) American judicial decisions, after the
Revolution; 3) judicial decisions of Eng-
lish and other common-law jurisdictions
since the Revolution; 4) the Law Mer-
101 POUND, SOURCES AND FORMS OF LAW 25
(1946).
102 POUND, op. cit. supra note 101, at 7-8; cf.
POUND, THE FORMATIVE ERA OF AMERICAN
LAW LAW 42-43 (1938).
103 POUND, THE FORMATIVE ERA OF AMERICAN
LAW (1938); POUND, THE SPIRIT OF THE COM-
MON LAW (1921); POUND, AN INTRODUCTION
TO AMERICAN LAW (1920).

chant; 5) the Canon Law of the Church
in some matters such as probate and
divorce; 6) International Law; and 7)
English statutes before the Revolution so
far as they were applicable and received
into the United States law.1
04
From the foregoing it is seen that a
developed legal system is made up of two
elements: a customary or traditional ele-
ment, and an imperative or legislative
element. The customary element must
not be thought to derive from a customary
mode of popular action. It is rather a
product of customary modes of profes-
sional or juristic handling of controversies
and is developed by professional writing
and teaching. 05 The imperative element
is that part of the legal system in the
form of rules or standards authoritatively
promulgated by the legislative bodies of
the state prior to judicial decisions, and
usually prior to action.'
One more point remains for brief con-
sideration in connection with the content
of legal precepts. We have just seen the
origin of the precepts. There remain
the modes of growth, or to use Maine's
expression, the "agencies by which law
is brought into harmony with society." 107
The agencies of growth through the tradi-
tional element are eight: fictions, inter-
pretation, equity, natural law, juristic
science, judicial empiricism, comparative
law, and sociological studies. 08 In the
imperative element there are five stages
104POUND, op. cit. supra note 101, at 32; cf.
POUND, THE FORMATIVE ERA OF AMERICAN LAW
(1938).
105 POUND, SOURCES AND FORMS OF LAW
(1946).
1oG Id. at 70.
107 Id. at 40.
108 Ibid.
13 CATHOLIC LAWYER, SPRING 1967
of development: unconscious legislation,
declaratory legislation, selection and
amendment, conscious constructive legis-
lation, and habitual legislation as an
ordinary agency which often culminates
in codification. 1 9
B. Source of the Authority of Law
The source of the content of legal
precepts could be developed at much
greater length. However, it is a question
of technical nature, of interest primarily
to the jurist and legal historian. 110 For
our present purpose the source of the
authority of law is of primary concern.
This problem is not so elaborately devel-
oped by Pound as the former, but it pro-
vides a better clue as to his philosophy. As
already indicated,", this question poses
three distinct problems.
The first problem is that of the im-
mediate practical source of the authority
of the legal order. This is found to be
in the legislative and administrative bodies
of politically organized society and backed
by the force of that society." 2
The second question, that of the
ultimate practical source of authority,
Pound considers to be a question for
political science to solve. However, he
submits, in our political theory we have
come to accept the theory that the source
is consent-the consent of a free people
to be ruled by a government of their own
choosing and by laws which they ap-
prove. 1 13
1091d. at 74-75.
0
See POUND, SOURCES AND FORMS OF LAW
"
(1946).
I" Cf. note 94 supra.
37 112 Cf. POUND, SOURCES AND FORMS OF LAW
5 (1946); POUND, SOCIAL CONTROL THROUGH
LAW 51 (1942).
113 POUND, SOCIAL CONTROL THROUGH LAW 52
(1942).
RoscoE POUND
Turning now to the ultimate moral
source of the authority of law Pound
notes that in the classical juristic theory it
was held that law deduced its authority
directly from justice and derived its bind-
ing force from justice of which it is
declaratory. Today, the dominant legal
philosophy tells us we cannot speak of an
ultimate moral source. But he submits
that the legal order has kept authority
because it performs, and performs well,
the task of social engineering; in other
words, because it works."'
It might well be asked upon what
premises this work of social engineering
is effected, upon what principles we select
and classify, compromise and reconcile
the overlapping and conflicting demands
which press for recognition. We cannot
reconcile conflicting demands except in
the light of some principle of justice, some
idea as to the end of law. Pound tells
us that in the past the process of social
engineering has been governed by ideals
of the end of law and the legal and social
order, and so it should be today.' 15 But,
114 Id. at 53: "The classical juristic theory is
that law may be deduced directly from justice,
from the ideal relation between men, and owes
its binding force to the binding force of
justice which it declares. The dominant legal
philosophy of today tells us that we cannot
answer this question. . . . But the legal
order goes on, whatever may be the basis of
whatever rightful authority it has, and I submit
it has kept and holds authority because it per-
forms, and performs well, its task of reconciling
and harmonizing conflicting and overlapping
human demands and so maintains a social
order in which we may maintain and further
civilization." See also Pound, The Pioneers
and the Common Law, 27 W. VA. L. REV. 1
(1920).
115 POUND, THE THEORY OF JUDICIAL DECISIONS
953 (1923): "In the past it has been governed
and its path defined by ideals of the end of.law
he continues, for our purposes today we
do not have to be guided by any God-
given order laid down once and for all,
nor by any reflection of this divine reason
governing the whole universe." 6 For our
purposes, he continues, and the point is
sufficiently significant to warrant direct
quotation: "If but his precept is other-
wise good social engineering, it is quite
immaterial what are the premises of the
legislative lawmaker or how he develops
them or whether he has any premises at
all." 117
Is it possible that law can achieve its
purpose without principles, that justice
can be really attained by a process of
compromising and reconciling conflicting
claims? If a compromise has been suc-
cessfully effected in a controversy can
we really say that justice has been real-
ized? For Pound the answer must neces-
sarily be affirmative."" The judicial pro-
cess is one not of seeking a reasonable
principle of justice but of a trial and
error method of finding the workable
legal precept."19 The workableness, the
and of the legal and social order, and it is
submitted that such ideals must be our reliance
today and tomorrow."
"'ild. at 954.
117 Id. at 956.
118 Cf. Pound, My Philosophy of Law, My
PHILOSOPHY OF LAW, CREDOS OF SIXTEEN
AMERICAN SCHOLARS 252 (1941).
119 POUND, op. cit. supra note 115, at 953:
"Our chief agency of lawmaking is judicial em-
piricism-the judicial search for the workable
legal precept, for the principle which is fruitful
of good results in giving satisfactory grounds
of decision of actual causes, for the legal
conception into which the facts of actual con-
troversies may be fitted with results that accord
with justice between the parties to concrete
litigation. It is a process of trial and error
with all the advantages and disadvantages of
such a process." Cf. POUND, THE FORMATIVE
ERA OF AMERICAN LAW 124 (1938).

functional approach, is always stressed
rather than the intrinsic reasonableness of
legal precepts. Therefore, because the
intrinsic reason and justice of rules do
not give them an unchallengeable author-
ity, he approved the jurists of the last
century who rejected natural law. 2 '
Necessarily connected with the ques-
tion of the source of the authority of law
is that of the source of rights and obli-
gations. By reviewing Pound's opinions
as to the source of these rights and obli-
gations we obtain a clearer insight into
his theory of law.
Looking first at the question of rights,
Pound reviews opinions of his predeces-
sors and notes that, in antecedent legal
theories, it was commonly held that rights
were a necessary consequence of human
nature and pertained to man simply be-
cause he is man. They thought of law
as giving effect to these rights simply
because they are natural rights. 12 1 Now,
120 POUND, PHILOSOPHICAL THEORY AND INTER-
NATIONAL LAW 83 (1923): "Yet the jurists of
the last century were right in their judgment
that the classical law-of-nature philosophy could
serve them no longer. They did not perceive
that the facts of political life which it assumed
and interpreted were changing fundamentally.
But they did perceive vividly that its theory
of the source of legal obligation was unsuited
to the times. A theory that found the binding
force of legal rules in the intrinsic reason and
justice of the rules themselves did not put be-
hind its rules the unchallengeable basis of
authority which men have been eager to pro-
vide for the law of the land." CI. 8 ENCYC.
Soc. SCl. 483 (1932).
1218 ENCYC. Soc. Sci. 489 (1932): "Where
the nineteenth century thought of law as ex-
isting to give effect to natural rights . ..
jurists since Ihering have thought of recogniz-
ing, delimiting and securing interests. It is
conceived that a legal system attains its end
by recognizing certain interests, by defining
13 CATHOLIC LAWYER, SPRING 1967
however, we should speak rather of in-
terests than of rights. These interests are
the demands or desires which human
beings, living in society, seek to satisfy
and of which the legal order must take
account. These interests do not, however,
give rise to an unchallengeable claim
against society, or against other individ-
uals, until they have been defined, de-
limited, and given legal recognition within
the defined limits. They are similar to
what jurists used to call natural rights in
that they are not created by law and
would exist independently of law.
"[M]uch of a kernel of truth . . . was in
the old ideas of a state of nature and in
the theory of natural rights." 122
We can illustrate this shift in emphasis
by one concrete example, the right to
property. Pound sees in the institution
of property not a natural right which is
given effect by legal precept, but a wise
bit of social engineering. Private prop-
erty is a way of satisfying more interests,
more demands and desires with a mini-
12 3
mum of friction and waste.
the limits within which these interests shall be
recognized legally and given effect through legal
precepts and by endeavoring to secure the
interests so recognized within the defined
limits. For such a theory an interest may be
defined within the defined limits. For such a
theory an interest may be defined as a demand
or desire which human beings, either individu-
ally or in groups, seek to satisfy and of which
therefore the ordering of human relations must
take account .. "
1221bid.; cf. POUND, THE TASK OF LAW 26-30
(1944); POUND, AN INTRODUCTION TO THE
PHILOSOPHY OF LAW 41-43 (1922).
123 POUND, AN INTRODUCTION TO THE PHI-
LOSOPHY OF LAW 234 (1922): "Social-utilitarian
theories explain and justify property as an in-
stitution which secures a maximum of interests
or satisfies a maximum of wants, conceiving it
to be a sound and wise bit of social engineering
Roscoe POUND
Turning next to the root of obligations,
Pound finds this also to be in social in-
terest. Emphasis is no longer on the in-
dividual will but upon the desires and
claims involved in civilized
The basis for delictual fault is a jural
postulate of civilized society that men
act with due care 125 and the basis for
delictual liability is the social interest in
2
the general security. The obligation to
when viewed with reference to its results. This
is the method of Professor Ely's well-known
book on Property and Contract. No one has
yet done so, but I suspect one might combine
this mode of thought with the civilization in-
terpretation of the neo-Hegelians and argue
that the system of individual property, on the
whole, conduces to the maintaining and further-
ing of civilization-to the development of
human powers to the most of which they are
capable-instead of viewing it as a realization
of the idea of civilization as it unfolds in human
experience. Perhaps the theories of the im-
mediate future will run along some such lines.
For we have had no experience of conducting
civilization on any other basis, and the waste
and friction involved in going to any other
basis must give us pause. Moreover, what-
ever we do, we must take account of the in-
stinct of acquisitiveness and of individual claims
grounded thereon. We may believe that the
law of property is a wise bit of social engineer-
ing in the world as we know it, and that we
satisfy more human wants, secure more interests,
with a sacrifice of less thereby than by anything
we are likely to devise-we may believe this
without holding that private property is etern-
ally and absolutely necessary and that human
society may not expect in some civilization,
which we cannot forecast, to achieve something
different and something better." See also POUND,
A SURVEY OF SOCIAL INTERESTS (1943); POUND,
THE SPIRIT OF THE COMMON LAW
(1921).
124 POUND, A SURVEY OF SOCIAL
(1943); POUND, AN INTRODUCTION
PHILOSOPHY OF LAW 169 (1922).
125 POUND, AN INTRODUCTION TO
LOSOPHY OF LAWN 170, 188-90 (1922).
12C Id. at 177.
keep promises or to honor contracts
comes not from the will of the person
who binds himself, but from the social
1 27
interest in the security of transactions.
society.12 4 It is wise social engineering. If we think
that it is the order of nature it is only
because the habitual application of the
rules of an art come to be taken for
28
granted.1
Evaluation and Critique
In the light of the expos6 just pre-
sented of Pound's legal doctrine, we may
evaluate, both positively and negatively,
his contribution to the advancement of
jurisprudence. Recalling the problems
presented in the first chapter we may well
inquire to what extent he has been suc-
cessful in solving or alleviating those dif-
ficulties. Naturally every solution of such
a problem cannot be attributed to him
directly and individually, but in the de-
velopment of American law during the
last half-century, he has a pre-eminent
role. Even yet he is not satisfied that the
law is perfect, but it must be admitted
that there have been many improvements
since he spoke in St. Paul in 1906.129
127 Id. at 188-90, 237; cf. Pound, Individual In-
terests of Substance-Promised Advantages, 49
HARv. L. REV. 1 (1945).
128 POUND, op. cit. supra note 125, at 278: "Two
circumstances operate to keep the requirements
of consideration alive in our law of simple con-
tract. One is the professional feeling that the
common law is in an idealized form of natural
law and that its actual rules are declaratory of
natural law. This mode of thinking is to be
196-98 found in all professions and is a result of
habitual application of the rules of an art until
INTERESTS
they are taken for granted."
TO THE 129We cannot agree with the observation of
Edmond Cahn that Pound appears ". . . so
THE PHI- well satisfied with the law as it now is." See
Cahn, Jurisprudence, ANN. SURVEY AM. L.
1160 (1944). From the time of his first

Pound's main endeavor has been in the
field of legal education. In this domain
alone he has contributed enormously
towards raising the standards required for
the legal profession. Not only has he as-
sisted in improving the basic require-
ments for admission to the legal profes-
sion, but also, by his voluminous reading
and writing, he has helped to create a
30
widespread interest in legal philosophy.1
If there is a growing interest in natural
law now in America, as there seems to
be,13 ' there can be no doubt but that
Pound helped to foster it. Though not a
strong advocate of natural law himself,
he has been largely responsible for intro-
ducing European ideas of legal philosophy
into America. Realizing that there did
exist a generation of lawyers who studied
law solely in terms of law divorced from
all other social phenomena, he has striv-
en, both in and out of the classroom, to
bring about a closer alliance between law
and the other social sciences."'
Pound's efforts in the field of education
have been productive of some good re-
sults elsewhere. It has helped to over-
come much of the "juristic pessimism"
of which he spoke.133 It has enabled
other lawyers, as well as himself, to adapt
the laws of the country to changed social
and economic circumstances.
Dean Pound has certainly achieved a
major address, note 1 supra, until his book,
Justice According to Law, he has been seeking
and suggesting methods for improving
law.
3 for the justice of the individual case.
0 Cf. note 7 supra.
1-3 Cf. Utz, Neue Str6mungen in der Nordam-
erikanischen Rechtsphilosophie, 1949-50 ARCHIV
FUER RECHTS-UND SOZIALPHILOSOPHIE 38.
132 cf. note 30 supra.
133 C. note 18 supra.
13 CATHOLIC LAWYER, SPRING 1967
great personal success in winning adher-
ents to his legal theory. He has earned
for himself a host of friends, admirers
and followers nationally and internation-
ally. Yet it cannot be said that his every
effort was positive contribution. Many of
his observations and conclusions merit
critical examination.
A. Historical Critique
Our historical critique is not going to
be prolonged to include every historical
observation, nor is it to be specifically
detailed. However, there are a few points
which need to be corrected. If it is not
too pedantic to bring up such a point, it
should be said, as a general criticism,
that he is guilty of a methodological error
on a grand scale. Time after time he
cites various authors with never a refer-
ence to the locus. The reader is left with-
out an easy opportunity to read the text
in its context. It is extremely difficult, to
the point of impossibility, to check all the
references. In The Spirit of the Common
Law, which he considers his most im-
portant work, Pound cites more than sixty
individual authors, either directly or in-
directly, besides groups of schools of
legal thought, without one reference note.
For this reason we do not know his
source of information when he writes
about Aristotle, but he certainly could not
have been reading Aristotle's text. Pound
calls Aristotle the first of the mechanical
jurists, for he held that the rule of law
the was to be applied strictly without regard
134
Pound professed a great admiration for
13 C. POUND, AN INTRODUCTION TO THE
PHILOSOPHY OF LAW 109-10 (1922); POUND,
THE SPIRIT OF THE COMMON LAW 86 (1921).
ROSCOE POUND
Kohler, yet had he read Kohler correctly
he would have discovered that Kohler
admired Aristotle for just the opposite. 3 '
However, it is not necessary to go to
Kohler for approval of Aristotle. The
text of Aristotle makes it clear that he
looked on the judge as a sort of animate
justice. 136 He considered equity a correc-
137
tion of the law.
Since Pound makes the same com-
ments with regard to St. Thomas Aquinas
as he did of Aristotle, we can turn for
contradictory evidence to Thomas' com-
mentaries on the same text of Aristotle.
According to Pound, St. Thomas con-
ceived the end of law to be one of
putting everybody in his place and keep-
ing him there. 1 38 As to the application
of law in particular case, the Scholastics,
says Pound, ignored the moral aspects of
the case, asking only if the prescribed
legal forms were followed. 13 9 In his com-
mentary on Aristotle, St. Thomas also
tells us plainly that the judge is con-
sidered to be a sort of incarnate justice
in that his mind is totally possessed with
justice. 1'40 Likewise he praises equity as
being more excellent in that it observes
the intention of the legislator when his
words are at variance with justice in an
individual case. For the legislator, he
35KOHLER, PHILOSOPHY OF LAW
(1914).
136Aristotle, Nicomachean Ethics, in 5
BASIC WORKS OF ARISTOTLE (1941).
13T Aristotle, Nicomachean Ethics, in 5 id. at
1137b10.
13S POUND, THE SPIRIT OF THE COMMON
86-87, 98 (1921).
39 Pound, The Theory of Judicial Decision, 36
HARV. L. REV. 658 (1923).
140 AQUINAS, IN DECEM LIBRos ETHICORUM
ARISTOTELIS AD NICOMACHUM EXPOSITo,
lect. 6, No. 955 (Marietti ed. 1934).
says, looks to the plurality of cases, but
is aware that his rule may not fit every
particular case. So the judge, in resort-
ing to equity to attain justice in an
individual case, is doing what the
1 41
legislator would do if he were there.
Pound's contention that the Scholastics
conceived of law as a matter of mere
authority can hardly be reconciled with
the definition of St. Thomas. For Pound,
reason came into the law after the
Reformation. 141 St. Thomas defines law
as essentially an act of reason.143 As
to its end, law is ordered to the common
good 14 and not to putting everybody in
his place by force and keeping him there.
The common good includes the ultimate
happiness of all the members.
Dean Pound appears to have been too
easily convinced by a popular Renaissance
notion that the middle ages were dark
ages. Had he investigated the Scholastic
writers more carefully, rather than taking
the word of a secondary source, he
could not possibly have come to the
conclusions he did. In helping to per-
petuate a story that is no longer believed
by prudent historians, he has rendered
a disservice to scholarship in general as
well as to jurisprudence. It is unbeliev-
able that a man of Pound's intellectual
ability could commit so gross an error
6-7, 86
if the doctrine of St. Thomas on law had
THE ever once been presented to him ob-
jectively.
Turning to contemporary scholars we
LAW
'41 op. cit. supra note 140, lect. 16.
AQUINAS,
142Pound, A Comparison of Ideals of Law,
47 HARV. L. REV. 10 (1933).
143 AQUINAS, SUMMA THEOLOGICA I-I, q. 90, art.
bk. V, 1.
144 Id. at I-I, q. 90, art. 2.

find that Dean Pound takes suitable
phrases or ideas out of context and uses
them to his own advantage. It has
already been noted that from Kohler he
takes thee jural postulates by a scissors-
and-paste method while rejecting the
principles upon which they were con-
45
ceived by Kohler.'
In a like manner, Pound claims to take
his scheme of social interests from
Ihering. For Ihering an interest presup-
poses a right and the interest is artificially
stimulated, if necessary, in order to main-
tain rights. For Pound, on the contrary,
there are only interests which the law
may or may not recognize. Private
property for example, is considered by
Pound to be a wise bit of social engineer-
ing, a way of securing more interests. For
Ihering, property is a part of personality
extended to things.'1 46 To speak of
property in terms of interest is, for him,
a degeneration of the proper sense of
property and a denial of its natural
basis. ' 7 In short, if one's knowledge of
Ihering were limited to what can be
gained from Pound it would be very
inexact. In effect he has taken from
Ihering only the terminology of "interests"
and given it an altogether different mean-
ing.
Another case in point is G~ny. Where
he speaks of science and technique as
necessary to law, Pound takes only the
elements of technique as though that were
all that was mentioned by Gfny. Grny
is the foremost natural-law legal scholar
in France, and it would be an injustice
145 POUND, INTERPRETATIONS OF LEGAL HISTORY
150 (1923).
146 IHERING, DER KAMPF 40.
247 Ibid.
13 CATHOLIC LAWYER, SPRING 1967
to him to intimate that he extolls tech-
nique over science in law. But there is
nothing to be gained by multiplication of
examples. This method of citation is
destined only to deceive. The use of con-
venient texts does not in any considerable
extent change the essential pragmatism of
Pound's legal theory.
B. Philosophical Critique
A philosophical critique of Pound's
legal theory is much more difficult since
there is very little of philosophy to be
found therein. This is not intended as
a harsh criticism since he makes no great
pretense at philosophy and very aptly
refers to his theory as sociological juris-
prudence. Nevertheless there are funda-
mental presuppositions, the lack of
which is itself a matter of investigation
in legal theory.
With Pound the difficulty is made
greater by reason of his extraordinarily
loose use of language and distrust of, or
disrespect for, logic. One well known
American professor of law was almost
driven to despair when he could not un-
derstand the legal Realists. But he felt
relieved to learn that Pound could not
understand them, nor could they under-
stand him. 148 The fact is, he rarely makes
a statement of consequence without sur-
rounding it with so many qualifying and
conditional phrases that one wonders at
the end if he is speaking or quoting.
However, even with the lack of logic and
loose language a few notions do emerge
distinctly.
Definition of Law: It has already
been noted that Pound gives various
148Lucey, Natural Law and American Legal
Realism, 30 GEO. L.J. 493-94 (1942).
RoscoE POUND
descriptions of law but never arrives at
a precise definition. 149 Each of the
descriptions reveals something of his
philosophy of law but no one of them,
nor even all of them taken together,
gives a clear notion of what he means
by law. Nevertheless, by considering not
only the descriptions of law which he
gives, but also the various meanings of
law which he criticizes, one can gain a
clearer concept of what he himself under-
stands by law.
Thus Pound criticizes the ancient jurists
because they considered the purpose of
law to be the maintenance of peace. It
is, therefore, clear that for Pound law
is not an instrument for securing and
maintaining peace in society.
Likewise he criticizes Aristotle and the
scholastics for holding that the end of
law is the maintenance of the status quo.
The historical dubiety of this point has
already been indicated. But from his
criticism of this alleged purpose it is
clear that for Pound the end of law is
not the preservation of the existing order
in society.
On the other hand, he says, using
Ihering's system of social interests, law
is not in the person but in society. It
is clear that, for Pound, law and rights
are not in the person. In each person
there are only interests which he seeks
to have recognized. Only when the
interests are recognized can we speak of
rights. Each individual seeks his own
proper good by pressing for the recog-
nition of his interests.
Likewise Pound takes from Gcny the
element of technique. It has already
49 See text at note 39 supra.
been pointed out that for Geny the ele-
ment of technique is always secondary to
the science and is at the service of
science to realize the ends which the
science of law proposes. But, as inter-
preted by Pound, the technique of G~ny
becomes a means of attaining an order
of peace among those who seek to
satisfy their own interests.
Taking the various descriptions which
he gives, and the criticisms of other
jurists, we see that, for Pound, law is a
compromise imposed by authority in a
society where each one seeks his own
interests. This definition, however, has
special qualities. It is not a pure
positivist definition as, for example, we
find in Kelsen. For Kelsen there is no
recognition of personality but only pure
law. For him the notion of law is derived
purely from law as such, abstracting from
any concept of personality or of any
given society of persons. For Lauter-
pacht also, law is defined as an instru-
ment of order in a society with no con-
sideration of the persons in the society or
of the determined structure of the so-
ciety. Del Vecchio also gives a definition
of law in which he envisages a deter-
mined society but abstracts from the in-
ternal structure of the society.
For Pound, on the other hand, there is
always a real element since he sees law
as an instrument in a free society, a
society in which he takes into consider-
ation the liberty of all who seek their per-
sonal development. For this reason he
is certainly not a positivist in the sense
of Kelsen. We recognize here a realiza-
tion of a demand of natural law, that
is, that the definition of law must imply
the real human nature, or a society of

free men. Unfortunately, however, with
Pound it is not human nature as
universally given.
Despite this approach to natural law,
there is in his conception of law an
element far removed from natural law,
properly speaking. From Ihering he
takes the notion of interests and develops
it as though there were no rights in the
person but only interests which struggle
for recognition. It is thus clear that for
Pound rights and law exist only in so-
ciety and not in persons. Parenthetically,
it might be said that there is a sense in
which this is correct, for if there were
only one person in the world there would
be no law. Law formally exists as a
relation among several free, moral sub-
jects. Nevertheless, what exists before
this formal law is more than a personal
interest only. There is a real law realized
in the same nature of the several subjects,
as we shall explain in more detail later.
Dean Pound believes law is an instru-
ment of organization in a concrete
political society where each seeks his own
interests. But according to natural law
one can well imagine that, before the
state, there is a society founded upon
human nature as such. While it is true
that in one sense society has a primacy
over the individual, it is also true that
man exists before the actual creation of
the state, and carries his personal rights
into the state which he founds. The
rights of the individual are not creations
of the state, but, as Pound remarks re-
garding interests, they exist in the person
independently of any state. Certainly, law
always exists in any social organization.
But this social organization precedes
positive legislation, being included in the
13 CATHOLIC LAWYER, SPRING 1967
social, not only individual, nature of man.
For this reason it is clear that Pound
does not take all of human reality into
consideration, although he does not ab-
stract completely from human personality
as do some other jurists. But since he
does not consider all of human reality he
remains outside the natural-law concept
of law and closer to the positivist
definition.
Finality: Considering finality as it is
found in law, Pound approaches the
idealists and also, to a certain extent, the
natural-law jurists. A philosophy of
pure law, such as advocated by Kelsen
for example, eliminates all finality and
considers only the operation of pure
positive law. Pound, on the contrary,
introduces the notion of finality into his
conception of law.
However, the notion of finality with
which Pound is concerned tends to con-
fuse juridical politics and the finality of
law itself. What he is really concerned
with is the finality as found in juridical
politics. In this sense all idealists, such
as Stammler and Del Vecchio, admit a
finality. But juridical politics is not law;
it does not establish a juridical order. It
is rather the antecedent effort to estab-
lish a juridical order. In the juridical
order itself Pound does not admit of a
finality but rather of a conflict of com-
peting interests which seek for recognition.
The order which he imposes is not, there-
fore, a juridical order.
In the theory of natural law, on the
other hand, man with all his rights is
social. And we must consider the com-
plete nature of man as a member of a
social community with a task to perform,
not merely as he is known by social
ROSCOE POUND
psychology as an intelligent being who
has interests he wishes to satisfy.
Finality, as understood by natural law, is
imposed by the very nature of man as a
social being who must by nature seek
the common good. This finality is itself
juridical and not merely ethical in the
modern sense of individual ethics, and it
creates law by itself prior to and inde-
pendently of positive legislation.
Some might object that this theory-
that a determined finality is the first
principle of the legal order-creates law,
and favors dictatorship in the formation
of law, as for example Nazism. With
Pound's theory, they would add, this
danger is absent because there is no pre-
determined finality but only juridical
politics in a determined society.
To this objection we reply that it is
clear that juridical finality could be
abused and made to serve the end of
totalitarianism. To avoid this danger we
must create barriers and also have re-
course to a certain individualism. This
individualist principle of order is found
in natural law and as a juridical principle.
Natural law does not say that any finality
is juridical. If that were the case, then
it would be true that the objectives pro-
posed for itself by any determined political
regime would have the power to create
law. But only that finality which cor-
responds to human nature has the power
to create law. Therefore the principle
cannot serve the ends of any form of
totalitarianism. On the contrary, it. is
the surest protection against absolutism
since it insists that finality as found in
human nature not only creates law but
also renders morally and juridically void
any positive legislation contrary to that
finality. In Pound's theory, on the other
hand, this protection is absent because
there are no rights in the person but only
interests which are recognized by political
authority. It follows, if there are no
higher norms, that the authority which
granted recognition to certain interests
could likewise withdraw that recognition.
With our conception of finality we can
resolve questions of law where there is
no positive determination. For Pound,
on the other hand, these questions can
only be resolved by a compromise of con-
flicting interests. If understood properly
his principle is not entirely false because
interests, in so far as they are conformed
to human nature, are a principle of order.
But experience demonstrates that not
every interest which men seek to secure
is conformed to human nature. Because
interests which are in conformity with
human nature are a principle of order,
Christian theory of natural law has
always supported the principle of sub-
sidiarity as a juridical principle. Accord-
ing to this principle, individuals seek to
satisfy their own interests in an order
which is conformed to nature and which
seeks first the common good. This can-
not be identified with Pound's theory of
interests, which are not and cannot be
juridical principles.
Norms: The most important part of
Pound's philosophy of law gives occasion
to a discussion of his conception of norms.
Actually he has no juridical norms in the
strict sense. What he admits as similar
to norms are the interests of the citizens
organized in a political society. Peace
and order are to be realized in this so-
ciety, not according to any superior

norms, but only according to the different
wills.
To be sure, there is some rule, some
norm, i.e., freedom. But this freedom has
no determined content. The content, the
manner, of this freedom is in continuous
evolution, depending on the decision of
the citizen. The concept of freedom as a
rule is, therefore, similar to a categorical
concept of Kant, without any determin-
ation. Nevertheless we have to recog-
nize that Pound, by underlining individual
freedom, is in no way in agreement with
the neo-Kantian, Kelsen, for whom there
is nothing determined by the concept of
law. For Kelsen, Russian law would be
law in the same way as American law.
Pound's doctrine of freedom, on the con-
trary, determines the concept of law in a
restricted sense, though he does not admit
any determination for this freedom.
Here the doctrine of natural law pro-
ceeds by determining the freedom of man
according to a really strict norm, that of
human nature. And in this manner we
come to an ethical concept of norms,
that is, a norm imposed as an ideal for
everyone. For human nature is not only
a norm for the individual man; it is the
same for all of humanity. Thus human
nature becomes a principle for organizing
every human society.
But this doctrine of natural law as an
ethical norm of society provokes a delicate
question, i.e., whether this norm must be
rigorously and rigidly applied to society.
The difficulty is evident. When we have
to apply ethical norms to society in the
same way as to the individual man, there
is no more freedom for each man in the
sense that his own discretion and
arbitrariness be the norm of social organ-
13 CATHOLIC LAWYER, SPRING 1967
ization and social engineering. There, only
the objective truth, which is imposed on
everybody, is a norm. Here, one could
speak of a dogmatic function of law,
settled by an authority like divine
authority. But where is this infallible
authority? Contemporary society no
longer acknowledges such an authority as
it was in medieval times when Christian
faith was the foundation of all social
action. Modem society has no common
conscience. On the contrary, human con-
science has disintegrated to the point
where there are as many consciences as
there are human beings.
For this reason we are forced to regu-
late social order according to the prin-
ciple of individual freedom. Otherwise
there would be no order. Or should we.,
perhaps, regulate it according to author-
itarianism? This is excluded by reason
of the fact that no human authority can
guarantee to conduct human society in a
really objective sense. Therefore author-
itarianism must always remain a social or
political system opposed to ethical norms.
We come, apparently, to the same con-
clusion proposed by Pound: individual
freedom is the rule for social engineering.
That much is certainly true. But there
is a great difference. Our conclusion is
really a conclusion, that is an application
of ethical principles. According to our
principle there is not simply individual
freedom but freedom absolutely subjected
to objective truth. Only in the applica-
tion can we agree that individual freedom
can be recognized as a rule of order. 50
And even in this we can never abandon
150 Cf. UTz, RECHT UND GERECHLIGKEIT 564-71
(1953).
ROSCOE POUND
the ethical demand that the juridical
order, in so far as it is possible, must con-
stantly seek the absolute truth. Accord-
ing to the doctrine of natural law, there
exists in every man a certain general
knowledge of ethical demands. It is for
this reason, for example, that after
World War II it was possible to punish
war criminals.
It appears that Pound supposes this
general knowledge of ethical demands in
saying that apart from freedom there is
another norm, i.e., "civilization." How-
ever, it is not clear what he means by
this term. Like freedom, this concept of
civilizaton is, with Pound, evolutionary
and devoid of any determined content.
Nevertheless, this conception seems to
approach the above mentioned idea of a
general knowledge of ethical demands.
However, this is an interpretation which
may not have been Pound's when he
speaks of civilization. Because the term
as used by him is vague and used to de-
nominate a future possible, it cannot
serve as a juridical norm. To summarize,
Pound attempts to build a juridical sys-
tem without any juridical norms.
Conclusion
We have seen briefly, but in its essential
elements, the legal philosophy of Roscoe
Pound. For him, law is a process of
social engineering, a process of adjusting
and compromising conflicting claims so
that the maximum of human interest may
be satisfied with a minimum of friction
and waste. The philosophical foundations
of Pound's legal theory is essentially
pragmatism; law is defined in terms of
function. Natural law and philosophy
are admitted as supplying ideal norms
which may be used as a critique of
existing law or to formulate positive
laws, but they are not admitted as juridi-
cal norms. Natural law, in the Thomistic
sense, is rejected chiefly because it is not
known. When Pound speaks of natural
law he is referring to later concepts of the
seventeenth and eighteenth centuries.
Pound's legal theory is radically de-
ficient because he attempts to create a
legal order without juridical norms.
Although he speaks frequently of absolute
norms of justice, in reality he does not
admit of such norms or he confuses them
with social or cultural norms. As is
evident from his use of the jural postu-
lates, the law should be designed to meet
the reasonable expectations of the society
of the time and place. The law then is,
for him, an instrument for ordering social
life in a determinate society, something
which is wholly foreign to the absolute
norms of natural law of which St. Thomas
speaks. Pound speaks of morality in the
law, but on these principles it could be
only a morality born of the social con-
science of the time and place. A Thom-
ist could not admit such a norm of
morality. For a Thomist human nature
is the principle not only of individual
ethics but also of social ethics, of which
legal philosophy forms a part. The legal
order must, therefore, enforce a moral
conduct which is objective and not born
of a particular social or cultural con-
science.
In practice, however, it is extremely
difficult to change an established legal
system and theory. If the norm for
jurisprudence is to be the individual will,
then the task that faces the scholastic
legal scholar is one of juridical politics.
The individual conscience must be so

formed that what each one wills cor-
responds with what he should will. The
principle that the individual will pro-
vides the ultimate norm for a legal sys-
tem can provide the basis for a stable
social and legal order only when the in-
dividual will is perfectly subjected to the
objective norms deriving from human na-
ture. Admittedly it would be difficult to
the point of impossibility to form the
conscience of all so that they corresponded
exactly with objective norms of human
action. But if a majority, or even a
large number, of the citizens were so
formed then their desires would be re-
flected in laws more in conformity with
the demands of natural law.
In the practical order, one of Pound's
constant concerns has been to avoid any
form of absolutism in government. To
this end he insists that we must have
absolute norms of values. If the ideals
are absolute, he says, it puts something
above the ruler or ruling body, something
by which to judge them and by which
they are held to rule. Yet it is impossible
for Pound himself to have absolute
ideals of justice. Based as it is on a
theory of social interests, his measure of
values must necessarily be relative and
also must necessarily be constantly
changing and adjusting to the needs of
the time and place. Further, since this
theory of interest admits of no absolute
rights but only interests that have been
recognized by the political force of the
society, it follows that the political force
that granted the recognition can like-
wise withdraw its recognition. Thus the
individual is left without any rights that
owe their existence to his nature. The
interests of the individual are enforceable
13 CATHOLIC LAWYER, SPRING 1967
only if and to the extent that they are
recognized by the political force of the so-
ciety. It is evident, therefore, that the
very thing that Pound is most anxious to
avoid is rendered more easily possible and
the door is left open to absolutism in
government. Only when there is recog-
nition of rights based on human nature is
freedom guaranteed.
Besides the juridical politics mentioned
above there is yet another way that
scholastic philosophers and legal scholars
can exercise an influence in the accepted
schools of jurisprudence. It has been
seen that Pound draws his materials from
the most diverse sources. Although this
does not alter his fundamental pragma-
tism, it does offer an opportunity to
modem scholastics to exercise an in-
fluence even within the framework of
pragmatic legal theory. At the present
time there is in America a decided dis-
satisfaction with the reigning legal theory.
Jurists, and Pound among the first, are
calling for legal philosophy to direct the
new movement. In the past jurists have
rejected natural-law theories because they
have been confronted with pseudo
theories. The task for scholastics is to
present the authentic natural law and
allow it to be judged on its own merits.
Another strong movement which can
be noticed among American jurists is a
sentiment for codification of the law.
If such a move should come, it would
not necessarily destroy the common-
law technique, but it would give
a greater stability to the law. Modern
scholastics must be prepared to present
the traditional Thomistic doctrine of law.
The time is ripe and the sentiment is
well disposed for it to be received into
the law.