UNIVERSITY OF NEGROS OCCODENTAL RECOLETOS

SCHOOL OF LAW

POLITICAL LAW:
REFORM, REVOLUTION AND
RESISTANCE
THE NEO-CLASSICAL PHILOSOPHERS

Submitted to :

ATTY. JOHN NOAH RED

Professor
History & Philosophy of Law

Submitted by :

JDL-12 Group IV
GONZAGA, ESTHER FAITH
HOREGUE, REYNALD
MALAN, JOELYN A.
 POLITICAL LAW:
REFORM, REVOLUTION AND
RESISTANCE
THE NEO-CLASSICAL PHILOSOPHERS

1) Introduction:
“All men are born equal, naked, without bonds. God did not create man
to be slave; Nor he endow him with intelligence to have him
hoodwinked, or adorn him with reason to have him deceived by
others”. – Jose Rizal, Letter to the Young Women of Malolos
Not long ago, states don’t have a charter, a constitution nor bill of
rights. The term “right” is a modern concept brought by liberitarian
groups and inspired by reformist philosophers who believed in a
government by consent.

The Social Contract replaced the Divine Rights Theory that justified the
absolutism of monarchies from the signing of the Magna Carta by King
John of England. These developments were followed by the Glorious
Revolution in England, French Revolution, American Revolution to the
Philippine Propganda of the Ilustrados were inspired by the
enlightened philosphers.

King John of England (1215)

- Was forced to sign the Magna Carta of the Great Charter after
the revolt of the barons for the hefty taxes imposed to his
failed campaigns and felt abused by the king who treats
himself as above the law
- The Magna Carta served as the template for the bill of rights
1767 – Boston Tea Party Revolt
- The rights resurfaced after the British Parliament levied the
taxes on teas which was a valuable commodity at that time
- Resulted to the Declaration of Independence by the
American colonies because the British Crown failed to repeal
the act on the teas taxes.
1776 – Thomas Jefferson
- He conceived the elements of a legitimate government based
on the affirmation of the natural rights of man
1935 - Malolos Constitution and the 1935 Philippine Constitution
- The Philippines adopted the American Bill of Rights and its
liberal philosophy
- Rizals’s Right of Man which comprehensively included the
equality of rights, right to property, sovereignty from the
people, the harm principle, freedom of belief and expression,
presumption of innocence, due process, strict but just
punishments for the guilty, proportionate taxation, public
accountability, separation of powers, security, peace and
order.
Social Contract Theorist
- Believed that society did not came from biblical account of
salvation history
- Society was brought about by conventions and agreements,
tacit or explicit which is now known as the SOCIAL
CONTRACTS
-
The Modern State, Civil Society and Rights were born after the social contract.
Laws, including a constitution, written or unwritten are expressions of
Contracts.

I) Machiavelli: the breach and the practice of politics

In all governments, there must be necessity be both the law and the
sword, laws without arms would give us not liberty, but
licentiousness and arms without laws would produce not subjection
but slavery. The law, therefore, should be unto the sword what the
handle is to hatchet, it should direct the stroke and temper the
force. – Charles Caleb Colton

The class power pundit – the knights, the queen, the bishops and
the pawns can all make or break the king.

The Prince – written by Machiavelli for the rulers in the making in a

very unstable society.

Who is Niccolo di Bernanrdo dei Machiavelli?

-he is the son of an Italian lawyer and was appointed diplomat,
administrator and chancellor of the Florentine Republic in the 15th
century, Italy.
-he was imprisoned and tortured by the Medici regime; he wanted a
rebellion that would restore the republican state which supposedly
giving cause for the provocation by fanning tyranical abuses in the
Prince. He has caveats in mind which provided the Machiavelli tips
on how to rule given in the ideal condition of decadence and
disintegration.

1) The ruler cannot be good always, he must pretend

2) There are two ways of fighting: one by law, another by force
3) The leader should himself shower the favors but should delegate
the punishments
4) It is good to be both loved and feared. But if the leader has to
choose, better be feared than to be loved but not be hated
5) Punishments should be done all at once sot that seldom felt but
less remembered
6) A ruler must be shrewd and swift to match the inconsistency of
the people and the political environment
7) The end justifies the means
Machiavelli pointed that although a ruler can take advantage of religion, the
contrary would also be true, he would be at loss without it. He was papal
adviser to Popes Leo X and Clement VII and died receiving sacraments.
Religion is useful in animating the people, in keeping men good and in
shaming the weekend.
He does not advise to take the women and property of his subjects at the
Prince. If he is to slay one’s fellow, betray one’s friend, act without faith
without pity, without religion, he may win in power but not in glory. With
virtue, one is praised and admired even by one’s enemies.
In the end, he only wanted empowered leaders who could bring terror to the
crooked, order and rights to the people, as well as to clear the way for a strong
and virtuous republic.

II. Hobbes on Sovereign Immunity

The law should be the point at which savagery ended because civilization
stood its path. – Ariana Franklin, Mistress of the Art of Death

Who is Thomas Hobbes?

- He argued in the Leviathan that life was originally “poor,
nasty, brutish and short” in a primitive state of war of every
man. Everyone was concerned with self interest just like in
the wild.
- Might makes right.
- He lived in the reformation England torn by religious wars
and family feuds
- Charles II was Hobbes student and justified the monarchy’s
persecutions
- Constantly guard against each other even from our own
family
 We humans are in constant fear of theft, invasion,
violence and death
- Eventually, men made alliances, decided to act collectively
and agreed to call into law enforcers as people wanted to
keep themselves safe and peaceful.
- Instead of taking the law into their hands, people
surrendered their original freedom to the rule of rulers.

A) Justifying Authoritarianism
Social Contract – the mutual transferring of natural right to the
Sovereign. A share of liberty must be given up to protect the rest.

- Either we have licentious and lawless society with everyone

pursuing interest his self-interest, or we put our stakes to a
monarch or a dictator to keep everything in order.
- Either there is chaos of wills or the will of one sovereign as
our law,
- Only governments with indivisible power could prevent the
disintegration of society
- The injustices of a ruler are better than the injustices under
the state of nature.
 - Better the abuses of one than the abuses of everyone against
everyone.
- Men will be compelled equally to the performance of their
covenants, by terror of some punishment.
- Once the people handover their sovereignty to their rulers by
putting them into power, part of the terms is to follow their
rules. From this original consent the people cannot retract.
In modern times, the sovereignty is no longer identified with the monarchy
but with the State itself.

The doctrine of state immunity from suit as provided in Article XVI sec 3 of
the 1987 Constitution, stemmed from the view that that the Sovereign is
absolute and that there can be no legal right as against the Authority that
makes the law on which it depends.

III. Thomas Moore on Republicanism & Family as the basic unit of

the Society
Sir Thomas More (7 February 1478 – 6 July 1535), venerated in
the Catholic Church as Saint Thomas More, was an English lawyer,
judge, social philosopher, author, statesman, and noted Renaissance
humanist. He also served Henry VIII as Lord High Chancellor of
England from October 1529 to May 1532. He wrote Utopia, published in
1516, which describes the political system of an imaginary island state.
Republicanism

- More believed in republicanism even at the time when he was still

favorite of Henry VIII;
-Man is corruptible;
-That it is too risky to put all sovereignty into one’s man in perpetuity;
-That the Sovereign must be elected by the people so that the electorate
can check and terminate their rulers’ regime of abuses.

The Familial State

Treatise on the Passion (Prayers from Thomas More)

He said that because human has a tendency to err, human beings have a
special need for government. The first government in the natural society is the
family, where as free beings, we are ordered to love and care for others. It is in
the family where we learn the virtues to be exercised in a larger society.

The Familial State

Utopia (perfect imaginary world)

A large family is a basic unit of society. The young children help in the
housework, while the elderly educate the children.

The whole island of Utopia itself is run like a single family.

- To prevent idlers, family time is structured.
- There are strict regulations to prepare men and women for marriage and
sexual fidelity.
- For those who cause the dissolution of family, will be investigated and
forbidden to remarry as punishment.
- Divorce is allowed for adultery and sexual perversions but the guilty party
cannot remarry.
- More believed in relative divorce (which we call in the Philippines the “legal
separation” but not absolute divorce that allows remarry, especially the guilty
party.

- In More’s Latin Poem, he argued that a good ruler would be like a good
father of the family (bonus pater familias).

- He envisioned that the Sovereign must consider the people as part of his own
body.

- The ruler must be a watchdog and a guardian ready for service, not a tyrant
or a wolf ravaging his own flock.

- He suggested a government like the Roman Republican State, where the

people could consent on bestowing and withdrawing sovereignty, and leaders
could involve themselves into a free discussion on matters of the state.

The Rule of law

- More observed that while a king is usually mild during his first year in
power, his unlimited power eventually makes him vulnerable to pride and
dismissive of other’s good opinion. Over time, his selfishness will wear the
people out.

- Given that people may have no choice on their current form of government,
in Utopia, More advised: “what you cannot turn to the good, you must at least
make as little bad as you can.” To correct even an absolutist government, there
must be a rule of law. Law is a criterion of justice and the substantial shield of
freedom.

- To prevent the abuse of law-making, there must be few laws but more
conventions and regulations, therefore advancing “less government”.

- More argued that apart from human law, there is a natural law written in the
heart that anyone can know by reason for internal guidance.

- Although More was a staunch of Catholic statesman, he did not want a state
religion. He believe in the separation of church and state, but not the absence
of conscience or morality in politics.
IV. Unlocking Inalienable Rights

- In his Second Treatise on Government (the companion book of District Atty.

John Reid in Disney’s “The Lone Ranger”,

- Locke said that in the beginning, people lived in “a state of peace, goodwill,
mutual assistance, and preservation” and enjoyed natural rights to protect
their own life, limb, and property.

- Man is by nature sociable and the social contract was made to further the
common welfare, especially for others who may not be able to defend
themselves.

- Civil government must be created not because the natural state is a state of
war, as told by Hobbes, but for greater convenience.

- Civil rights are the result of social contract and protect and supplement
natural rights. These rights are natural to mankind and cannot be given away.

- The American Declaration of Independence provides that it is self-evident

that “all men are created equal” and “endowed by their Creator” with
UNALIENABLE RIGHTS (to life, liberty, and the pursuit of happiness)

- This echoed Locke’s conception of the Natural Law: Reason, which is that
law of nature, teaches all mankind who will consult it that being all equal and
independent, no one ought to harm another in his life, liberty or possessions.

- There are universal natural laws not because human beings have innate
ideas or knowledge, since human mind is actually a “tabula rasa.” Rather,
human beings happen to share the same experiences that are rationalized into
universal principles.

The People’s Trust

- The social contract is a pact among free men for the public good.

- When a sovereign goes against the public good and natural rights, he betrays
the people’s trust and the people have the right to disobey and revolt.

- Although trust is revocable, social contract is not. The sovereign is simply

replaced but the laws that preserve social order remain.

- For Locke, to obtain a balance of power, he proposed that the legislative,

executive, and federative powers must be separated in a tripartite system.

- Locke supported also a parliamentary form of government, majority rule,

and popular representation.

- Further, sovereign power must not be transferred to those whom people did
not entrust this power. This known as the “doctrine of non-delegation.”
V. Rousing Man To Be Free

Jean-Jacques Rousseau

- (28 June 1712 – 2 July 1778) was a Genevan philosopher, writer, and
composer. His political philosophy influenced the progress of the Age of
Enlightenment throughout Europe, as well as aspects of the French
Revolution and the development of modern political, economic, and
educational thought.

- Rousseau conceived man to be originally good and free in his idea of the
“noble savage.” (symbolizing the innate goodness of humanity). This finds
application in the doctrine of “presumption of innocence.”

- “Man was born free but everywhere he is in chains.”

- It is society that corrupts and induces man to lose his childhood innocence
and to be savage, selfish, and unhappy.

The General Will

- In Rousseau’s Social Contract, each individual is considered part of the

whole society, the collective body. People join society not to abdicate their
natural liberty but for improvement and sophistication.

- The general will is not the will of all or the will of the majority, but the
common interest expressed through laws. Since laws were made with the
participation of the people, these are binding to everyone.

- Those who are unaware or who resist the general will may thus be compelled
to act accordingly, and be “forced to be free.”

VI. THE “MILL” OF HAPPINESS & LIBERTY

“ Every law is an infraction of liberty.”

Jeremy Betham, lawyer, Father of Modern Utilitarianism

John Stuart Mill

Was a radical and genius in his days. At the age of three, he was taught
Greek. By eight, he was reading philosophy, geometry, Latin, algebra and
physics. At fourteen, he was doing chemistry, zoology, and logic. At twenty, he
had anervous breakdown for too much study. Mill became the second
husband of the feminist Harriet Taylor Mill and grandfather of the Nobel-
laureate, mathematician-philosopher Betrand Russel.

He was a member of the English Parliament, wrote in On Liberty that “

the only purpose for which power can be rightly exercised over any
member of civilized community, against his will, is to prevent harm
to others.” this became known as the “ Harm Principle”. Man is free to
pursue his happiness as long as he does not harm others. He may harm
himself in the process but not others. When he does harm others, this is the
only time that law may intervene. Otherwise, “ over himself, over his body and
mind, the individual is sovereign

Freedom of Action & Thought

Mill said that a person “ cannot rightfully be compelled to do or forbear

because it will be better for him to do so, because it will make him happier,
because, in the opinions of others, to do so would be wise or even right. These
are good reasons for remonstrating with him, or reasoning with him, or
persuading him, or entreating him, but not for compelling him or visiting him
with any evil in case he does otherwise.” The contrary is involuntary servitude.

The exceptions are when a person still needs the care or guardianship of
others, and if the person does not realize what he is about to do, like in
preventing a person from crossing an unsafe bridge that he thought is safe. A
person may not also be allowed to sell himself as a slave or to abdicate, waive,
or resign his freedom. One is not to be free.

Freedom of action must be distinguished from freedom of thought.

Whereas one’s actions can be interfered with if a person becomes nuisance to
others, he is free to believe at his own cost whatever be wants to believe.

In the chapter ‘ Of Liberty of Thought and Discussion”, Mill argued

for a free press, saying that “ all silencing of discussion is an assunption of
disability.”

Freedom of thought loses its immunity from the law under circumstances
when the form of expression has become “ a positive instigation to a
mischievous act.” Mill cited as example the incitement of a mob to do harm to
others.

UTILITARIANISM
Utilitarianism is the philosophy of pursuing pleasure and avoiding pain,
for the “ greatest happiness of the greatest number.” However, Mill’s version
of utilitarianism, unlike Jeremy Bentham before him, considers the kind or
quality of pleasure and not just its quantity or intensity.

In Utilitarianism, Mill explained that the pleasures of a swine are not the
happiness of a man.

According to Mill, “ men lose their high aspirations as they lose

their intellectual tastes, because they have not time and opportuniy
for indulging them; and they addict themselves to inferior
pleasures, not because they are either deliberately prefer them, but
because they are either the only ones to which they have access or
the only ones which they are any longer capable of enjoying.”

Law should ensure the greatest good for all concerned.

Being Useful

Mill claimed that once an obligation is assigned to a person , such as being

a family man , a soldier, a government official, or a debtor , he can be
punished for a “breach of duty”.

Mill defined duty “ as a thing which may be exacted from a person , as one
exacts a debt.”

Perfect Obligation
Is one with a correlative right that can be demanded by others.

Imperfect Obligation
Has no corresponding rights but a mere benefience or generosity that one
is not bound to practice.

- Real progress is the succession of government from absolute to limited

monarchy, from limited monarchy to democracy, then from democracy to
organizing the rights of every man from which the state derives its authority
Mill’s advocacy ( Today’s civil society’s advocacy)

“ right to be let alone”, including individualist choice, free speech,

religious, racial, and political tolerance, privacy rights, reproductive rights and
personal space.

The appeal to private pursuit of happiness has progressively stricken

down laws that restrain private morality and victimless crimes ( ie crimes that
do not harm or harm only the participants themselves) such as consensual
sexual activities like fornication, which for Mill must be tolerated.

Legal paternalism ( against Mill’s theory)

Views that laws can be justified if they prevent a person from harming
himself, such as laws proscribing suicide, self- mutilation, and requiring seat
belts, helmets, or safety gearsto be worn even if only the unwilling passenger
or driver would otherwise be seriously injured.

VII. Civil Disobedience as a duty

CIVIL DISOBEDIENCE
The Philippines had experienced two peaceful “ People Power”
revolutions. In both cases, the succeeding administration had been
recognized.

Principle of Civilian Supremacy

“ The Philippines is a democratic and republican state. Sovereignty resides

to the people and all government authority emanates from them.”
Article II , Section 1 of 1987 Philippine Constitution
Advocate of Civil Disobedience

- Mohandas Mahatma Gandhi “ satyagraha”, was an Indian lawyer,

anti-colonial nationalist and political ethicist, he encourage India not to pay
salt taxes to the British Government and that they make saly on their own.

- Martin Luther King Jr., was an American Baptist minister and activist
who was one of the most prominent leaders in the civil rights movement from
1955 - 1968. He organized the first major protest of the African-American civil
rights movement : The successfut Montgomery Bus Boycott.

-Leo Tolstoy, was a Russian author, a master of realistic fiction and one of
the world’s greatest novelist.
- He is best known for his two longest works, War and Peace (1865-1869) and
Anna Karenina ( 1875-1877).

Henry David Thoreau

- who advocated civil disobedience not only as a right but as a duty to pro-
actively change an oppressive system.

- The feminist Emma Goldman called Thoreau as “ the greatest American

anarchist,”

- He taught that government is at best “expedient” although not necessary,

and thus people could resist and survive its absence , especially a bad
government .

- He believed more in self-governance than political governance, and that the

government should take steps to recognize the individual’s right to govern his
own affairs.

When revolution is Right and Ripe

- Thoreau said it is “the right to refuse allegiance to, and to resist the
government, when its tyranny or its ineffeciency are great and
unendurable.”

- The rule of expediency of government no longer applies when “ a people, as

well as the individual must do justice, cost what it may.”

- According to him “ Blood may flow even from a non-violent rebellion, but
blood is laready flowing when the conscience is wounded.”
Cases
 Province of North Cotabato v. Government of the Republic of the
Philippines, G.R No. 183591, October 14, 2008
 Air Transportation Office v. Spouses Ramos, G.R No. 159402, February
23, 2011
 David v. Macapagal-Arroyo, G.R No. 171936, May 03, 2006
 Jospeh Ejercito Strada v. Sandiganbayan , G.R No. 148560, November 29,
2001