Atty. Nestor Jeremy B.
Moreno History of Philosophy
JD 101 - Philosophy of Law
Introduction to Philosophy of Law
● What is philosophy? - from the ancient Greek φίλος,
phílos: "love"; and σοφία, sophía: "wisdom” Quite
literally, the term "philosophy" means, "love of wisdom."
● In a broad sense, philosophy is an activity people
undertake when they seek to understand fundamental
truths about themselves, the world in which they live, and
their relationships to the world and to each other. As an
academic discipline philosophy is much the same.
● Those who study philosophy are perpetually engaged in
asking, answering, and arguing for their answers to life’s
most basic questions.
● To make such a pursuit more systematic academic
philosophy is traditionally divided into major areas of
study.
Metaphysics
• At its core the study of metaphysics is the study of the
nature of reality, of what exists in the world, what it is like,
and how it is ordered. In metaphysics philosophers wrestle
with such questions as:
Is there a God?
What is truth?
What is a person?
What makes a person the same through time?
Is the world strictly composed of matter?
Do people have minds? If so, how is the mind related to
the body?
Do people have free wills?
What is it for one event to cause another?
Epistemology
Epistemology is the study of knowledge. It is primarily
concerned with what we can know about the world and how
we can know it. Typical questions of concern in epistemology
are:
What is knowledge?
Do we know anything at all?
How do we know what we know?
Can we be justified in claiming to know certain things?
Ethics
The study of ethics often concerns what we ought to do and
what it would be best to do. In struggling with this issue,
larger questions about what is good and right arise. So, the
ethicist attempts to answer such questions as:
What is good? What makes actions or people good?
What is right? What makes actions right?
Is morality objective or subjective?
How should I treat others?
Logic
Another important aspect of the study of philosophy is the
arguments or reasons given for people's answers to these
questions. To this end philosophers employ logic to study the
nature and structure of arguments. Logicians ask such
questions as:
• What constitutes "good" or "bad" reasoning?
• How do we determine whether a given piece of reasoning
is good or bad?
The study of philosophy involves not only forming one’s own
answers to such questions, but also seeking to understand
the way in which people have answered such questions in
the past. So, a significant part of philosophy is its history, a
history of answers and arguments about these very
questions. In studying the history of philosophy one explores
the ideas of such historical figures as Plato, Aristotle,
Aquinas, Descartes, Locke, Hume, and Sartre.
What often motivates the study of philosophy is not merely
the answers or arguments themselves but whether or not the
arguments are good and the answers are true. Moreover,
many of the questions and issues in the various areas of
philosophy overlap and in some cases even converge. Thus,
philosophical questions arise in almost every discipline. This
is why philosophy also encompasses such areas as
Philosophy of Law, Religion, Mind, Political Philosophy,
History, Feminism, Science, Literature and the Arts, and
Language.
Philosophy and Law
• Lawyers are typically interested in the question: What is the
law on a particular issue? This is always a local question and
answers to it are bound to differ according to the specific
jurisdiction in which they are asked. In contrast, philosophy
of law is interested in the general question: What is Law?
This general question about the nature of law presupposes
that law is a unique social-political phenomenon, with more
or less universal characteristics that can be discerned
through philosophical analysis.
• Philosophy of law (or legal philosophy) is concerned
with providing a general philosophical analysis of law and
legal institutions. Issues in the field range from abstract
conceptual questions about the nature of law and legal
systems to normative questions about the relationship
between law and morality and the justification for various
legal institutions.
• Reference:
• (Andrew Altman (1986), “Legal Realism, Critical Legal
Studies, and Dworkin,” Philosophy and Public Affairs,
vol. 15, no. 2, pp. 205-236.
• Thomas Aquinas (1988), On Law, Morality and Politics
(Indianapolis: Hackett Publishing Co.).
• John Austin (1977), Lectures on Jurisprudence and
the Philosophy of Positive Law (St. Clair Shores, MI:
Scholarly Press.
• The philosophy of law concerns itself with questions about
the nature of law and the concepts that structure the practice
of law. Its topics will include the definition of law, or, if strict
definition proves unfruitful, descriptions or models of law that
throw light on difficult and marginal cases, such as
international law, primitiv law, and immoral or unjust law.
• Concepts that require understanding include those of a
legal right or duty, of legal action and the place of concepts
such as intention and responsibility, the nature of legal
reasoning and adjudication, and the overwhelming political
importance of the rule of law.
Who is a student of the law?
• The Four Barometer:
• Rule of Law • Human Rights
• Justice and equity • Fairness and good faith
Questions to ponder
• What is law?
• Do we need laws?
• Do we need more or less laws?
• What makes a good law?
• A good State?
• What is justice?
• How did we arrive at our laws?
• How are laws classified?
• When can we say that a right is a right?
• Can laws make us free? Make us fully human?
What is law?
• Law is a science of principles by which the civil
society is regulated and held together, by which
right is enforced, and wrong is detected and punished. -
Justice Joseph Bradley, US Supreme Court
• The body of rule governing the conduct of
persons living in association with others, under
the guaranty of social compulsion. - Henri De Page
• Law is a rule of conduct, just, obligatory
promulgated by legitimate authority, and of
common observance and benefit. - Sanchez Roman
• Law is nothing else but the best reason of wise men
applied for ages to the transactions and business of
mankind. - Abraham Lincoln
WHAT is law, in its legal sense? Blackstone said that law,
in its most general and comprehensive sense, "is that rule of
action which is prescribed by some superior and which the
inferior is bound to obey.'
2 Civil law he defined as "a rule of civil conduct
prescribed by the supreme power in a state, commanding
what is right and prohibiting what is wrong."'
3 In Blackstone's definitions there are two main concepts: (1)
the concept of a "superior," and (2) the concept of a
command."'
4 Is Blackstone's definition correct in either of these
respects?
1. Natural School
• In the natural school of thought, a court of justice decides
all the laws. There are two main parts of this definition. One,
to actually understand acertain law, an individual must be
aware of its purpose. Two, to comprehend the true nature of
law, one must consult the courts and not the legislature.
2. Positivistic Definition of Law
• John Austin’s law definition states “Law is the aggregate
set of rules set by a man as politically superior, or sovereign
to men, as political subjects.” Thus, this definition defines law
as a set of rules to be followed by everyone, regardless of
their stature. Hans Kelsen created the ‘pure theory of law’.
Kelsen states that law is a ‘normative science’. In Kelson’s
law definition, the law does not seek to describe what must
occur, but rather only defines certain rules to abide by.
3. Historical Law Definition
• Friedrich Karl von Savigny gave the historical law definition.
His law definition states the following theories. Law is a
matter of unconscious and organic growth. The nature of law
is not universal. Just like language, it varies with people and
age.
• Custom not only precedes legislation but it is superior to it.
Law should always conform to the popular consciousness
because of customs.
• Law has its source in the common consciousness
(Volkgeist) of the people. The legislation is the last stage of
lawmaking, and, therefore, the lawyer or the jurist is
more important than the legislator.
4. Sociological Definition of Law
• Leon Duguit states that law as “essentially and exclusively
as a social fact.”
• Rudolph Von Ihering’s law definition. – “The form of the
guarantee of conditions of life of society, assured by State’s
power of constraint.” This definition has three important
parts. One, the law is a means of social control. Two, the law
is to serve the purposes of the society. Three, law due to its
nature, is coercive.
• Roscoe Pound studied the term law and thus came up with
his own law definition. He considered the law to be
predominantly a tool of social engineering. Where conflicting
pulls of political philosophy, economic interests, and ethical
values constantly struggled for recognition.
• Against a background of history, tradition and legal
technique. Social wants are satisfied by law acting which is
acting as a social institution.
5. Realist Definition of Law
• The realist law definition describes the law in terms of
judicial processes. Oliver Wendell Holmes stated – “Law is a
statement of the circumstances in which public force will be
brought to bear upon through courts.”
• According to Benjamin Nathan Cardozo who stated “A
principle or rule of conduct so established as to justify a
prediction with reasonable certainty that it will be enforced by
the courts if its authority is challenged, is a principle or rule of
law.”
• As the above law definitions state, human behavior in the
society is controlled with the help of law. It aids in the
cooperation between members of a society. Law also helps
to avoid any potential conflict of interest and also helps to
resolve them.
Legal Wisdom; Counsel
• The damned – The Devil’s Advocate
• It’s a pyramid with Satan on top of it – Al Pacino
• The most despicable in common conversation who pervert
the general reason of mankind – The Gulliver’s Travels
• Like a philosopher, but unlikely it, can make money.
Philosophizing law. . .
• The Philosophy of Law
- the love of the wisdom of the law
• The Philosopher-lawyer
• A lover of the wisdom of the law
• 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, 9th Ed

LAWS
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
A. 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
1. 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 “for
bearance” which means intentional refraining from action)
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.
(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
A. 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
A. 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.
Jural Law
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.
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.”
(1)“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”
(1)“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 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:
A. 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 claimduty, 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 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.
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
(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.
1. Possession 1. Agency 1. Contract
1. Intention 1. Consideration 1. Negligence
(2)Concepts – are general categories into which specific
cases and things may be classified. Examples are legal
concepts
on:
• 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.
1. 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 itjus divinum.
(2) Strict Sense
• 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.
The Path of the law
Reiterating ideas that Holmes had sketched in The Common
Law sixteen years earlier and in other writings extending
over more than a quarter century, The Path of the Law
provides a mature, polished expression of his understanding
of law. Four closely related ideas convey this concept, which
I will call Holmesian positivism. First, Holmes' prediction
theory of law:
A. First, The prophecies of what the courts will do in fact,
and nothing more pretentious, are what I mean by the law.'
B. Second, his "bad -man" perspective on law: If you want to
know the law and nothing else, you must look at it as a bad
man, who cares only for the material consequences which
such knowledge enables him to predict, not as a good one,
who finds his reasons for conduct, whether inside the law or
outside of it, in the vaguer sanctions of conscience.
C. Third, his opposition to the use of moral terminology in
law: For my own part, I often doubt whether it would not be a
gain if every word of moral significance could be banished
from the law altogether... We should lose the fossil records
of a good deal of history and the majesty got from ethical
associations, but by ridding ourselves of an unnecessary
confusion we should gain very much in the clearness of our
thought.
D. Fourth, his alternative theory of contract: Nowhere is the
confusion between legal and moral ideas more manifest than
in the law of contract.... The duty to keep a contract at
common law means a prediction that you must pay damages
if you do not keep it,-and nothing else.
THE PATH OF THE LAW
• “Holmes rejected the idea that law could be studied as a
science. He also emphatically dismissed Langdell's belief
that legal systems obey rules of logic. While his book, The
Common Law (1881), is a scholarly tour de force, his 1897
essay, "The Path of the Law," has proved to be one of the
most influential works in legal theory. In the essay Holmes
builds on the themes of The Common Law, which included
his disassociation of law from morality and his emphasis on
policy over logic. He went on to define the law as a
prediction of what the courts would do in a particular
situation. He proposed a "bad man" theory of justice: a bad
man will want to know only what the material consequences
of his conduct will be; he will not be motivated by morality or
conscience.”
See: The Path of the Law - The Path Of The Law - Holmes,
Legal, Logic, and Studied - JRank Articles
https://law.jrank.org/pages/11777/PathLaw.html#ixzz8CVw4tj
G
• “Holmes's jurisprudence led to the conclusion that judges
make decisions first and then come up with reasons to
explain them. His approach, which has been characterized
as cynical, touched a nerve with succeeding generations of
legal scholars.”
See: The Path of the Law - The Path Of The Law - Holmes,
Legal, Logic, and Studied - JRank Articles
https://law.jrank.org/pages/11777/PathLaw.html#ixzz8CVw8i
M00
• “As judges, we are not automatons. We do not and must
not unfeelingly apply the law as it is worded, yielding like
robots to the literal command without regard to its cause and
consequence. “Courts are apt to err by sticking too closely to
the words of law,” so we are warned, by Justice Holmes
again, “where these words import a policy that goes beyond
them.”
• More than twenty centuries ago, Justinian defined justice
“as the constant and perpetual wish to render every one of
his due.” That wish continues to motivate this Court when it
assesses the facts and the law in every case brought to it for
decisions. Justice is always an essential ingredient of its
decisions. Thus when the facts warrant, we interpret the law
in a way that will render justice, presuming that it was the
intention of the lawmaker, to beginwith, that the law be
dispensed with justice.
• Indeed, where the interpretation of a statute according to its
exact and literal import would lead to mischievous results or
contravene the clear purpose of the legislature, it should be
construed according to its spirit and reason, disregarding as
far as necessary the letter of the law. A statute may
therefore, be extended to cases not within the literal meaning
of its terms, so long as they come within its spirit or
intent.”(citations omitted).
- Republic v. Manalo, G.R. No. 221029, April 24, 2018,

• “Especially in these times when everybody is stalked by
interminable anxiety arising out of fear of losing their jobs,
closure of their business, succumbing to Covid-19, losing
their loved ones and many others, courts must take their cue
from the Supreme Court to be mindful that the law’s finest
hour is when its interpretation resonates with what is just.
That the law is magnificent when in tasteful blend with justice
and equity.”
- Atty. Eduardo T. Reyes, III, “Blending law with justice and
equity.”
Concepts of Law
• The term law may be understood in two concepts:
(1) general or abstract sense, and
(2) specific or material sense.
• First sense equivalent to Spanish term derecho; in the
second, to Spanish term ley.
• General Sense.
– In the general or abstract sense, law has been defined
as “the science of moral rules, founded on the rational
nature of man, which govern his free activity, for the
realization of the individual and social ends, of a nature
both demandable and reciprocal.” (1 Sanchez Roman 3)
- Briefly, it is the mass of obligatory rules established for
thepurpose of governing the relations of persons in
society. (1 Salvat 1-3)
• Specific Sense.
– In a specific or material sense, law has been defined
as a “juridical proposition or an aggregate of
juridicalpropositions, promulgated and published by the
competent organs of the State in accordance with the
Constitution.” (1-I Ennecerus,Kipp & Wolf 136)
• It is a norm of human conduct in social life, established
by a sovereign organization and imposed for the
compulsory observance of all. (1 Ruggiero 5-6).
• Sanchez Roman defines it as “a rule of conduct, just,
obligatory, promulgated by the competent authority for
the common good of a people or nation, which
constitutes an obligatory rule of conduct for all its
members.”
Foundations of Law
• Law is a product of social life and is a creation of human
nature. It was intended by man to serve man.
• It regulates the relations of human beings so that harmony
can be maintained in the social group, by placing restrictions
on individual liberty in order to make co-existence possible.
• Law, therefore, rests upon the concepts of order, co-
existence, and liberty.
Characteristics of Law
• 1) it is a rule of human conduct,
• (2) promulgated by competent authority,
• (3) obligatory, and
• (4) general observance.
Law and Morals
• Not all human conduct is regulated by law. There are other
forms of regulation, such as morals and religion. Only the
rules of law, however, have a legal sanction and can be
enforced by public authority.
• Law and morals have a common ethical basis and spring
from the same source – the social conscience.
• There was a time when spiritual and moral concepts were
indistinguishable from the juristic and legal. This confusion
continued even into the classical age, as may be seen from
the writings of Plato and Aristotle.
• In Greece, there was no word to signify law, because it
was included in the universal concept of justice.
• Among the Romans, the term jus is derived from from
justice, and it has been defined as the art of being good and
fair.
• Since they spring from a common source, law and morals
have many identical precepts.
• But the Romans began to distinguish between law and
morals, and the distinction has remained to the present day.
The law in many cases takes into account moral concepts;
however, not all moral duties have been converted into
juridical obligations, because if this were to happen, morals
would lose their essential characteristic of being voluntary.
• Law covers only social activities, or the relations of man to
his fellow-man;
• However, morals, not only the duties of man to his fellow-
being, but also those to himself and to his God. Even among
our duties to our fellow-men, many are still dictated by
morals, such as those which have a psychological basis,
including the duties of assistance and self-sacrifice.
Purpose of law and morals
• The purpose of law and morals is basically the same:
happiness, which cannot exist for man, except through a
permanent and stable equilibrium between human
personalities
• But, an act may be entirely in conformity with law but
contrary to morals; and vice versa, conduct may be justifiable
from the point of view of morals but contrary to law.
• Law and morals according to Colin and Capitant are like
two concentric circles; it is, however, perhaps more accurate
to say that they are like two intersecting circles, with many
principles in a common zone, and yet with some principles of
one at variance with those of the other.
General divisions of law
• Law in its most comprehensive sense has been divided
into two general groups:
• Divine law - God himself is the legislator who has
promulgated the law
• Human law - is meant that which is promulgated by man to
regulate human relations;
• Human law is in turn divided into two main classes:
• general or public law
• individual or private law
General or Public Law
• General or public law:
a) International law, or that which governs the relations
between nations or states, that is, between human beings
in their collective concept.
b) Constitutional law, or that which governs the relations
between human beings as citizens of a state and the
governing power.
c) Administrative law, or that which governs the relations
between officials and employees of the government.
d) Criminal law, or that which guaranties the coercive
power of the law so that it will be obeyed.
e) Religious law, or that which regulates the practice of
religion.

Individual or Private Law
a) Civil law, or that which regulates the relations of
individuals for purely private ends.
b) Mercantile law, or that which regulates the special
relations produced by commercial transactions.
c) Procedural law, or that which provides for the means by
which private rights may be enforced.
Kinds of Specific Laws
• Law, in the specific sense, is generally classified into (1)
mandatory, (2) prohibitory, and (3) permissive.
• In one sense, every law commands, because it is
obligatory; but itcommands in three different ways: (1) it
commands that something be done, in which case it is
mandatory; (2) it commands that something should not be
done, in which case it is prohibitory; and (3) it commands
that what it permits to be done should be tolerated or
respected, in which case it is permissive.
Codification of Laws
• As laws multiply, the need for compilation arises.
• After compilation, however, a higher need is felt, that of
codification. This is the systematic organization of the law
into one or more codes.
• A code is a collection of laws of the same kind; a body of
legal provisions referring to a particular branch of the law.
• Purpose: “To reduce the bulk, clear out the refuse,
condense and arrange the residium, so that the people and
the lawyer, and the judge as well, may know what to practise
and obey – this is codification, nothing more and nothing
less.”
Why we need to codify laws:
1. The necessity of simplifying and arranging the many
juridical rules scattered in several laws and customs;
2. the necessity of unifying various legislations in the
same country; and
3. the necessity of introducing reforms occasioned by
social changes.
Codification of laws in the Philippines
• The first step towards codification of private law in the
Philippines was taken by President Manuel L. Quezon in
1940, when he created a Code Committee to formulate a
civil code for the Philippines.
• This committee was headed by Supreme Court Chief
Justice Ramon Avancena, with the following as members:
Justice Jose P. Laurel, Justice Antonio Villareal, Dr. Jorge
Bocobo, and Dr. Pedro Ylagan. In June 1941, Justiice Alex
Reyes and Justice Mariano A. Albert were appointed as
additional members. The Department of Justice assigned
then Judge Roberto Concepcion and First Assistant Solicitor
General Jose B.L. Reyes, now retired Chief Justice and
retired Associate Justice of the Supreme Court, respectively
as General Consultants to the Committee.
• During the military occupation of the Philippines, the Code
Committee was retained as an office in the Japanese-
sponsored government. The members were reappointed on
March 12, 1942; but on June 6, 1942, former Supreme Court
Justices Anacleto Diaz and Antonio Horilleno were added as
new members. Attorney Godofredo Reyes was also
appointed member on August 10, 1942, thereby increasing
the membership to ten.
• The Code Committee had begun its work of codification of
the civil code; but its records were destroyed in the battle for
the liberation of Manila in 1945.
Legal and Philosophical Issues
What is law?
• Law connotes binding communal rules – the dos and dont’s
of social order;
• 2 classification: Jural or human laws and non-jural or meta-
legal law
• The concern of lawyers is jural law and to the extent of
pointing the source of a right or duty, non-jural natural law.
• Law in its specific and concrete sense is a rule of conduct,
just, obligatory, formulated by legitimate power for common
observance and benefit. (Lapitan v. Philippine Charity
Sweepstakes Office)
• Law is an ordinance of reason ordered towards the
common good, promulgated by him who has charge of the
community. (Aquinas)
• A reasonable rule of action expressly or directly
promulgated by a competent authority for the common good,
and usually, but not necessarily, imposing a sanction in case
of disobedience. (Justice Edgardo Paras)
• A rule of conduct, just, obligatory, promulgated by
legitimate
authority and of common observance and benefit. (Sen.
Arturo Tolentino)
Law vs. Customs
• Law – duty to comply, due to external actions or threats by
the individuals tasked to enforce the law
• Customs – agreement that parties agreed to follow in good
faith but without corollary punishment when disobeyed
Four elements
1. Reasonable ordinance (rationis ordinatio)
2. For the common good (bonus communis)
3. Promulgated;
4. by a legitimate authority.
If any of the 4 requisite is absent, ”law” is not really a law
and need not be observed.
Reason and common good
• “The law is perfection of reason.”
• The measure of human acts is human reason, for it is by
reason that we perceive and put order into things.
• A reasonable law is necessary, moral, useful, clear in
expression and adapted to place and time.
• The field of morals is more extensive than law.
• The end is that the law should observe and promote public
morality that concerns the common weal.
Promulgation and Authority
• Notice to the public is needed in law-making process.
• Due promulgation must come from a competent authority.
Branches of Law
• Substantive – rights, duties, corollary prohibitions.
• Remedial – procedure, manner of administering, enforcing,
appealing, amending and using legal rights and claims.
• Public or political law – concerned with the structures of
government, relationship between individual and State.
• Private law – rules governing relationship of individuals.
• Criminal law– violation of public order through punishable
acts or omissions.
• Civil law – rules of civility in terms of marriage, property,
succession, contracts, torts, and private wrongs.
• Mercantile law – commercial laws that regulate
commercial transactions.
Law and truth
• For the relativists, truth is relative, subjective, perspectival
and limited by what the person personally experienced.
Limited to one’s awareness.
• Objectivists, on one hand, state that there is an external
reality or objective truth independent of what a person thinks,
feels or believes.
Legal truth
• Law has established is rules of evidence, which is the
process of ascertaining the truth.
• Evidence – the means sanctioned by the rules, of
ascertaining in a judicial proceeding the truth, respecting a
matter of fact.
• Legal truth – refers to the truth supported by legally
admissible evidence in a judicial proceeding.
• Thus, there might be differences in the actual truth of what
happened and the legal truth. Law, authority and force
• Justice without force is impotent. – Blaise Pascal
• Charisma, tradition and law – three (3) ways on how an
authority establishes itself in society
• Charisma – a person gains ascendancy, creates a cause
which others believe
• Tradition – by association; a leader is recognized because
of his influence, identity, background
• Law - basis
MIDTERM
• Legal Theories
• Natural Law Theory
• Positivist Theory
• Interpretivist or Constructivist Theory
• Realist Theory
• The Critical Theory
MIDTERM
• Nature of Mankind
• Law is a product of social life and is a creation of human
nature – Tolentino, Commentaries and Jurisprudence on the
Civil Code of the Philippines
• Man is a rational animal; possesses the faculty of reason;
CHAPTER III
Phases of Natural Law Theory:
• Classical Phase
• Scholastic Phase
• Enlightenment Phase or Modern Phase
Legal Theory
• Refers to a topology of discourses about the origin,
purpose and character of the law.
• It evaluates and prescribes how a body of concur becomes
norm, rules, or obtains binding effect.
• It should not be confused with the 'theory of a case," which
refers to the principles, claims, or grounds under which a
litigant proceeds. When law students develop a legal thesis,
or when lawyers, judges, and justices write arguments or
opinions, it is important to establish from what theory one is
dissecting a question of law.
• Inclusion of Natural Law in Civil Code
• Natural Obligations
• Article 19, 20 and 21 of the Civil Code:
• Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his
due, and observe honesty and good
faith.
• Every person who, contrary to law, willfully or negligently
causes damage to another, shall indemnify the latter for the
same.
• Any person who willfully causes loss of injury to another in
a manner that is contrary to morals, good customs, or public
policy shall compensate the latter for the damage.
Natural Law Theory
• It looks into the principles, purpose, and end of the law.
• It goes to the question of the why of the law.
• The proponents of this school believe that the law serves a
higher universal order or “natural order,” which we can
discover through our common human reason, needs, and
aspirations and validate by human experience.
• An example of “normative jurisprudence” which evaluates
the purposes or norms behind the law;
Positivity Theory
• Positivism highlights obedience to the content and
expression of the law “dura lex sed lex.”
• It is also known as “command theory” which does not
consider the reason behind the law to determine its meaning
and intent;
• It highlights obedience rather than evaluation; Dura Lex
Sed Lex, Quod principi placuit legis habet vigorem; Inspired
legalism as a legal philosophy, which means rule BY the law;
Does not need precedent, rules of procedure, or processes;
• Denounces critical obedience to authority; Interpretivist or
Constructivist Theory
• What the law means is what the judges of the law would
read it to mean.
• It subjects the law to construction and interpretivism;
• Delves deeper into the merits and substance of the law;
• In the absence of laws, judges must revert to general
principles; They cannot invent;
Realist Theory
• “pragmatic jurisprudence which focuses on human realities
that are often overlooked by hard law, technicalities, and
abstract policies;
• Reflects practical experience; It tells the law and the law
practitioner to get real;
• The life of the law has not been logic, it has been
experience;
• Experience, expediency, life, and necessity
The Historical School
• Law has a past and a progression;
• It develops gradually and undergoes an evolutionary
process, cannot be separated from its indigenous origins –
clannish rules, folk beliefs and landmark events that shaped
the nation.
• Raises the question of how the law originated;
• This school of thought believes that reading the law is not
enough, one must also understand its historical origins, the
struggles, identity that helped shaped the law.
The Historical School
• Law is impressed by cultural beliefs, folklores, religions,
common experiences and consciousness (geist) of a people;
• Ex. Lupon and barangay system
• Freidrich Karl von Savigny – the law evolve with its people
• Sir Henry Sumner Maine – progress of society affects
evolution of the law
• G.W.F. Hegel – State is the product of converging historical
forces towards an absolute point where freedom will finally
be realized
The Functional or Sociological School
• Law is both a means of social control and progress;
• Law should balance the diverse interests and institutions of
society and promote progressive national policies;
• This approach justifies “Judicial Activism” and ”Judicial
Legislation”
• Related to realist theory
The Functional or Sociological School
• William James – law is a means to satisfy needs
• Charles Louis Baron de Montesquieu – law must adapt to
shifting social conditions
• R.Von Jhering – law is method of ordering society
composed of competing interests; legal rules should resolve
and harmonize rather than exacerbate conflicts
• Roscoe Pound – a coherent society must have a pattern of
culture that determines its ideology
• Max Weber – criticized the institutionalization and
bureaucratization of laws that have become unresponsive to
concrete situations
The Functional or Sociological School
• Roberto Mangiera Unger – law must have cultural concept
to support it
• Eugen Ehrlich - legal norm must follow social norms and be
a “living law”
• Balancing of interest test, compelling interest test –
influenced by the sociological school
• Sociological approach has been used to recognize and
advance the rights and interests of marginal groups, mainly
the Bill of Rights, of the underprivileged over the power
wielded by the State
The Economic Approach
• Judge Richard Posner – economic jurisprudence and
consequentialism;
• Policies are evaluated based on their effects on economy;
• Laws take its cue from economics and plays a larger role in
modern legal system;
• Every lawyer ought to seek an understanding of economics
Formalist and Originalist School
• Legal formalism and conceptualism holds that the law is a
strict science governed by formal axioms, legal principles,
and rules of logic;
• Only legal experts or those with formal legal training can
best interpret the law;
• Textualism – plain meaning approach
• Originalism – original meaning, original intent
Formalist and Originalist School
• By-the-book approach
• Adheres to judicial restraint, judges must only interpret not
construct laws
• Formalism demands a strict approach to avoid the abuse of
their discretionary powers;
• A judge may not disagree on the morality of the law, or on
the propriety of penalties but he or she is tasked to strictly
follow the law;
• US Supreme Court Justice Antonin Scalia – advocated for
judicial restraint
Practice Theory
• Free-for-all
• The different approaches to law or modalities have their
own use and purpose;
• Legal practice must master these modalities;
• We use these modalities based on our sensibilities and
motivations.
NATURAL LAW, INTERNATIONAL LAW, and the
CLASSIC PHILOSOPHIES
• The nature of mankind
• Law is a product of social life, and is a creation of human
nature – Tolentino
• Do unto others what you want others done unto you – the
Golden Rule
• Human’s common nature, intelligent, contemplative, and
self-conscious nature
• Human experiences is largely affected by the subconscious
more than the conscious life – Carl Jung
Phases of Natural Law as a Theory
1. Classical Phase
• Human reason is common among men, as well as the
precepts of right law and equity.
• The unwritten law higher than the law of men – J. Puno on
Republic vs Sandiganbayan, et al (GR 104768, July 21,
2003.
• Laws that in the highest heaven had their birth, neither did
the race of mortal men create them, nor shall oblivion ever
put them to sleep – Sophocles
2. Scholastic Phase (2nd)
• “Thomism” - natural law is man’s participation with eternal
law – St. Thomas Aquinas
3. Modern or Enlightenment Phase (3rd)
• Use of Natural law as a basis for natural rights, duties and
obligations.
• Immanuel Kant’s concept of Categorical Imperative – acting
the way one would like his act to be the universal rule or
“deontology”
4. International Law Phase (4th)
• General principles of law and international rights; common
law of mankind.
• In Philippine jurisdiction, natural law was made as basis for
the incorporation of “natural obligations”
• Concept of natural obligations
• Equity, morality, fair dealing, natural justice.
• The Concept of Ideal Justice – Plato’s Republic
• The Rule of the Philosopher-King versus The Rule of Law
• Aristotle’s Rational Law and Rational Animal
• “The virtuous lawyer and the virtuous judge”
• Cicero and his De Legibus
• We are born for Justice, and that right is based, not upon • Usufructuary
men’s opinion, but upon Nature; Law ought to be a reformer • Servitudes
of vice and an incentive to virtue; • Occupation and Possession
• Unjust statutes are no more than the rules of a band of • Donation
robbers in an • Wills and Succession
assembly; • Obligations and Contracts
• Aquinas on Natural Inclinations • Special Contracts
• Eternal law and natural law • Quasi Contracts
• Natural law is the guide, human law, the details. • Delicts and Quasi-Delicts
• Enlightenment Philosophers • Actions and Interdicts
• Natural rights are those which always appertain to man in • Different Kinds of Ownership
the right of his existence – Thomas Paine
• PUNO, J. Separate Opinion, Republic v. Sandiganbayan, et ARTICLE 419. Property is either of public dominion or of
al (G.R. No. 104768, July 21, 2003) private ownership. (338)

Natural Law and Natural Rights in Philippine ARTICLE 420. The following things are property of public
Cases and Constitution dominion:
• People v. Asas • (1) Those intended for public use, such as roads, canals,
The Court admonished courts to consider cautiously an rivers, torrents, ports and bridges constructed by the State,
admission or confession of guilt. banks, shores, roadsteads, and others of similar character;
• (2) Those which belong to the State, without being for
• People v. Agbot public use, and are intended for some public service or for
Lack of instruction not an exempting circumstance in the the development of the national wealth. (339a)
crime of homicide or murder.
ARTICLE 421. All other property of the State, which is not of
• Mobil Oil Philippines, Inc. v. Diocares, et al the character stated in the preceding article, is patrimonial
Influence of Natural Law in stressing that the element of a property.(340a)
promise is the basis of contracts
ARTICLE 422. Property of public dominion, when no longer
• Manila Memorial Park Cemetery, Inc. v. CA intended for public use or for public service, shall form part of
Doctrine of Estoppel, originating in equity, is justice the patrimonial property of the State. (341a)
according to Natural Law
ARTICLE 423. The property of provinces, cities, and
• Ateneo De Manila University, et al v. Hon. Ignacio municipalities is divided into property for public use and
Capulong patrimonial property. (343)
Concept of academic freedom
• To follow the argument wherever it may lead - Socrates ARTICLE 424. Property for public use, in the provinces,
cities, and municipalities, consist of the provincial roads, city
CIVIL LAW: THE ROMAN JURISTS streets, municipal streets, the squares, fountains, public
• Roman Law: All Codes Lead to Rome on the nature of law waters, promenades, and public works for public service paid
• The precepts of law are: to live honestly, to injure no one, for by said provinces, cities, or municipalities.
and to give every man his due, which is JUSTICE
• Latin maxims All other property possessed by any of them is patrimonial
• Romans believed that what is legal must be moral and shall be governed by this Code, without prejudice to the
“crystallize with its laconism a thousand past experiences in provisions of special laws. (344a)
human eternal quest for what is just and right
• Justinian Code (534 AD) ARTICLE 425. Property of private ownership, besides the
• Collection of existing Roman laws made by Tribonian and patrimonial property of the State, provinces, cities, and
other legal scholars municipalities, consists of all property belonging to private
• Constitutionum persons, either individually or collectively. (345a)
• Digest or Pandects
• Institutes Ownership of Animals
• Novellae constitutions post codicem • ARTICLE 560. Wild animals are possessed only while they
• Nature of law are under one’s control; domesticated or tamed animals are
considered domestic or tame, if they retain the habit of
Article 19 of the Civil Code
returning to the premises of the possessor. (465)
• The Law on Persons
• Children and marriage
Right of Accession
• Right of the unborn child
• Civil Code provisions:
• Parental control
• Articles 438 to 439
• Bonus pater familia
• Articles 445 to 459
• Guardianship
• Articles 460 to 474
• Authority and control over a free person
• Law on property
Usufructuary
• Different kinds of ownership
• Articles 562, 567, 575, 591, 603.
• Ownership of animals
• Right of Accession
Servitudes
• Articles 641, 642 to 647, 649, 657, 669, 675.
Occupation
• Articles 536, 533, 537, 1134, 1137
Donation
• Articles 728 to 729, 765, 731, and Article 82 of the Family
Code
Wills and Succession
• Articles 796 to 972
Obligations and Contracts
• Articles 1156 to 1327
Sales
• Articles 1403, 1469, 1482, 1495.
Loan, Mutuum, Deposit, and Pledge
• Articles 1933, 1935, 1937, 1953, 1972, 2099
Delicts and Quasi-Delicts
• Articles 2176, 2193, and 2180.
Latin Maxims
• Omnes legum servi sumus ut liberi esse possimus. (We are
slaves of the law in order that we may be able to be free.)
• Accusare nemo se debet, nisi caram Deo. (No one is
compelled to accuse himself, except before God.) Art. 11,
Sec. 17. No person sham he compelled to be a witness
against himself.
• Audi alteram partem. (Hear the other side.) Art. IlI, Sec. 14.
(2) In all criminal prosecutions, the accused x * x shal enjoy
the right to be heard by himsel and counsel xxx to have a
speedy,. impartial, and public trial.
• Domus sua cuique est tutissimun Art IlI, Sec. 2. The right of
the people to be secure in their persons refugium. houses,
papers, and effects against (To everyone, his house is his
unreasonable searches and seizures of surest refuge.)
whatever nature and for any purpose shall be inviolable xxX.
• Non bis in idem. Art. III, Sec. 21. No person shall be (No
one shall be punished for twice put in jeopardy of
punishment for the same offense. the same offense.)
Latin Legal Maxims/Precept
Accessorium sequitur naturam sui principalis. (The
accessory follows the nature of its principal.) New Civil Code
Art. 466. Whenever two movable things belonging to
different
owners are, without bad faith, united in such a way that they
form a single object, the owner of the principal thing acquires
the accessory, indemnifying the former owner thereof for its
value.
• Aedificium solo credit. (The building yields to the land.) Art.
445. Whatever is built, planted or sown on the land of
another and the improvements or repairs made thereon,
belong to the owner of the land xxX.
• Boni judicis est lites dirimere. (It is the duty of good justice
to prevent litigation.) Art. 2029. The court shall endeavor to
persuade the litigants in a civil case to agree upon some fair
compromise.
• Caveat emptor. Art. 1563. In the case of contract (Buyer
beware.) of sale of a specified article under its patent or
other trade name, there is no warranty as to its fitness for
any particular purpose, unless there is a stipulation to the
contrary.
• Ex pacto illicito non oritur Art. 1352. Contracts without
cause, action. or with unlawful cause, produce no (No action
arises out of illicit effect whatever. The cause is unlawful
bargain.) if it is contrary to law, morals, good customs, public
order or public policy. F
• acta legem facunt inter partes. Art. 1159. Obligations
arising from (Stipulations have the force of contracts have
the force of law between law between parties.) the
contracting parties and should be complied with in good
faith.
• Finita voluntate, finitum est mandatum. Art. 1920. The
principal may revoke the agency at will, and compel the
agent (Upon the termination of the will, the agency
is terminated.) to return the document evidencing the
agency. Such revocation may be express or implied.
• Genus nunquam peruit. (Generic things do not perish.) Art.
1263. In an obligation to deliver a generic thing, the loss or
destruction of anything of the same kind does
not extinguish the obligation.
• Homo est et qui est futurus. Art. 40. Birth determines
person- (He is already a man who will ality; but the
conceived child shall be considered born for all purposes
that become a man.) are favorable to it, provided it be born
later x X X. Art. 3.
• Ignorance of the law excuses no one from compliance
therewith. Ignorantia excusat. legis neminem (gnorance of
the law does not excuse.)
• In pare delicto potior est conditio defendatis. (Where both
parties are at fault, the condition of the defendant iS better.)
Art. 1192. In case both parties have committed a breach of
the obligation, the liability of the first infractor shall be
equitably tempered by the courts. If it cannot be determined
which of the parties first violated the contract, the same shall
be deemed extinguished, and each shall bear his own
damages.
REMEDIAL LAW
• Francis Bacon – use of precedents in common-law
• Case repositories – related cases are applied and logically
turned into principles
• Stare decisis (settled decision)
• The process follows the stare decisis ("settled decision") of
a case that grows by each new application and ruling. Like
cases must be adjudicated alike by appeal to precedent. The
past case becomes an authoritative guide in deciding a new
case. Bacon stressed the importance of legal reports and
archiving as source of precedents that had become available
with the invention of printing. He used and popularized this
new method through legal briefs and was thus considered by History of the United States, by Urofsky, Knopf, New York
some jurists to be the "Father of Modern Jurisprudence." 1988 citing Marbury v. Madison [1803]).

• “But beyond the immediate issue, Marshall also claimed for

• It was the philosopher-historian David Hume who said that
the Court two far-ranging powers. The first of these, judicial
if the sun rises today, it does not follow that it will tomorrow. review of legislation, was not that revolutionary,
There is no necessity or certainty that the sun will rise despite the
tomorrow since improbabilities can always happen. absence of a specific delegation of
Nevertheless, whenever there are reports of extraordinary this authority in the Constitution.
events, improbabilities, or miracles, we must always favor Marshall carefully justified the
evidence for the probable over the improbable, say, that the Court’s power through a commonsense
reading of Articles III and VI.
sun rose over reports that it did not.
Article III provided that “the
judicial Power of the United States, shall;
• The reason why we do favor probabilities is based on be vested in one supreme Court,
"custom," that is, from what we become accustomed based and in such inferior
on the evidence of past experience. Everything is possible Courts as Congress may from time
indeed, but in our judgment, we better err on the side of the to time establish.” The grant
more possible, of what more regularly or customarily occurs. of judicial power provided a broad
mandate, intended to include all
But again, these are not facts, only presumptions. If a
functions normally performed by
contrary fact is presented, the presumption is disputed. courts, and therefore had to
be
• Hume's skepticism on the law of cause and effect and the read in light of customary usage
regularity of the laws of nature was tempered by Ludwig and other provisions of the
Wittgenstein criterion of "common sense" and "healthy Constitution. Article VI, the
Supremacy
human understanding." These are relevant in justifying
Clause, established a hierarchy of
what the Rules of Evidence refers to as "conclusive law, with the Constitution at
presumptions" Rule 131, Sec. 2) and matters that can be the apex, superior to acts of
taken with judicial notice without need of evidence Congress.
(Rule 129). Whenever the two conflicted, the
lesser (legislation) had to give
• Not every good or bad moral character of the offended way to the greater (the
Constitution). Marshall also relied on
party may be proved under this provision. Only those which
English and American legal
would establish the probability or improbability of the offense traditions, in which the power
charged. This means that the character evidence must be of
limited to the traits and characteristics involved in the type courts to nullify legislative acts, while
of offense charged. Thus, on a charge of rape - character for admittedly not exercised
chastity, on a charge of assault - character for frequently, nonetheless existed, and
peaceableness or violence, and on a charge of sufficientexamples, many in fresh
memory, supported the power.
embezzlement - character for honesty. In one rape case,
Finally, the Constitution, although
where it was established that the alleged victim was morally the fundamental law of the land,
loose and apparently uncaring about her chastity, we found remained a law; as such,
the conviction of the accused doubtful. – CSC vs. Belagan, it had to be interpreted,
G.R. No. 132164, 19 October 2004 and courts had
always been the accepted interpreters
of the law.” (Ibid.)
POLITICAL LAW and the Neo-Classical Philosophers • On Legal Education
• Constitutions are indispensable foundations of the modern • “Legal education requires “that lawyers should not merely
legal and governmental system learn rules of law” but also
• The term “right” is a modern concept brought by libertarian study the “facts, human, industrial, social, to which they are
revolutions and inspired by reformist philosophers who to be applied. Even after he went
believed in a government by consent. to the bench, Brandeis warned his colleagues that “the logic
• On the Constitution’s Source of Power of words should yield to the logic
• “The American Constitution, he wrote, is a charter [] of of realities”. – p. 209, Louis D. Brandeis, “A Life” by Melvin I.
power granted by liberty” not ( as in even enlightened Urofsky
European nations) a charter of liberty … granted by power. • On Executive Privilege
In the United States, it is the people, not a central authority, • The rationale had been that if people speaking or
who are the source of legitimate federal power. Thus corresponding
Americans are unlikely to consider an exercise of with the chief executive feared that their advice or their views
governmental authority fully legitimate unless they can trace on
the source of that exercise back to the people events or persons could be made public, they would refuse
themselves. We can easily trace congressional statutes back to be
to the people through our system of federal elections, which candid, and thus deprive the president of important advice
put in place the representatives who write the statutes. needed to
• ~ pp. 145-146, The Court and the World, Stephen Breyer make a decision. – p. 262, Louis D. Brandeis, “A Life” by
citing James Madison Melvin I.
• On the provenance of the power of judicial review Urofsky
• “The proper initial question for any court to ask is whether it • On Sociological Jurisprudence
has jurisdiction over a particular • The judgment should be based on a consideration of
case; if the answer is no, it need not- and should not- decide relevant facts, actual or possible- Ex
the merits”(p. 184, A March of Liberty: A Constitutional facto jus oritur [Law must arise from facts]. That ancient rule
must prevail in order that we may have
a system of living law”. • Holmes dissenting to “Freedom of Contracts” ruling of the
• – p. 484, Louis D. Brandeis, “A Life” by Melvin I. Urofsky Majority in Lochner
Brandeis, despite his fond memories v. New York (1905)
of Harvard Law and his belief •
in absolute rules of morality, • First, that judges should not be in the business of
had long since gone a determining the wisdom of legislative
different way. Like Holmes and measures and, second, that the State should be given the
Roscoe Pound, he advocated a widest possible latitude in using its
“sociological jurisprudence” that took facts power, even if that meant favoring one economic class or
into account and demanded that social group over another. X x The
law respond to changing question always is where do you find the prohibition- not
social and economic conditions”. where do you find the power.
•Xxx • ~Dissent and the Supreme Court, Melvin I. Urofsky
• • Tasks of Supreme Court
• Abstract reasoning, deliberate ignorance of the facts of • For a better understanding of our
industrial society, a limited role for the State, and a belief in ruling today, we review below, in
immutable law combined with an emphasis on individualism light of the Court's
x x x make up classical fundamental constitutional tasks, the
legal thought. (Emphasis supplied). constitutional and statutory evolution
• of the Court's
• Today most people who think seriously about the law see it original and concurrent jurisdiction, and
as a social development reflecting its interplay with related doctrines,
the changing needs of an evolving society. pronouncements,
• – pp. 593-594, Louis D. Brandeis, “A Life” by Melvin I. and even the Court's own rules, as
Urofsky follows: (a) The Court's original and
• Brandeis from the time he had been in law school believed concurrent
that law divorced from jurisdiction; (b) Direct recourse to the
factual reality could only be sterile, and the more separated it Court under the Angara model; (
became, the greater a threat to c) The transcendental
society. importance doctrine; ( d) The Court
• is not a trier of facts;
• … that law had to fit the conditions of society. ( e) The doctrine of
• – pp. 617, Louis D. Brandeis, “A Life” by Melvin I. Urofsky hierarchy of
• courts; (f) The Court's expanded
• On Freedom of Speech jurisdiction, social rights, and the
• When men have realized that time has upset many fighting Court's constitutional rulemaking power
faiths, they may come to under the 1987 Constitution; (g)
believe… that the ultimate good desired is better reached by Exceptions to the doctrine of
free trade in ideas – that the best hierarchy of
test of truth is the power of the thought to get itself accepted courts: The case of The Diocese of
in the competition of the market Bacolod v. Commission on
and that truth is the only ground upon which their wishes Elections; (h) Hierarchy
may be safely carried out. That, at of courts
any rate, is the theory of our Constitution. It is an experiment as a constitutional imperative; and
as all life is an experiment”. ~ (i) Hierarchy of courts as
Justice Oliver Wendell Holmes, Jr., dissenting in Abrams v. a filtering mechanism
United States, 250 U.S. • As slated previously, parallel guidelines have been adopted
616 (1919), p. 553, Louis D. Brandeis, A Life, by Urofsky by this Court in the exercise
• But an expression of opinion can never be proved false, ofjudicial review: 1. actual case or controversy calling for the
because the accuracy of an opinion is exercise of judicial power; 2. the
indeterminate. No matter how “grossly unfair as an person challenging the act must have "standing" to
interpretation of facts or even wholly challenge; he must have a personal and
unfounded in fact” an opinion represented what a person substantial interest in the case such that he has sustained,
believed, and that could not be or will sustain, direct injury as a
criminalized”. – (1920) Pierce v. United States (Dissenting result of its enforcement; 3. the question of constitutionality
Opinion) p. 558, Louis D. must be raised at the earliest
Brandeis, A Life, by Urofsky possible opportunity; 4. the issue of constitutionality must be
• the very lis mota of the case.
• “What is involved is, to me, no •
more than a question of taste, • Thus, the exercise of our power of judicial review is subject
or punctilious observance of to these four requisites and the further
certain proprieties concerning which well- requirement that we can only resolve pure questions of law.
meaning men may honestly differ; and I These limitations, when properly and
am not strictly observed, should aid in the decongestion of the
prepared to say that there has Court's workload. To end, while reflective
been such a blatant disregard deliberation is necessary in the judicial process, there is
of either as to call for simply no ample time for it given this
the Court's massive caseload. In fact, we are not unaware of the
interposition of this Court’s power of proposals to radically reform the
review merely for the deletion of judicial structure in an attempt to relieve the Court of its
the matter objected to.- backlog of cases. Such proposals are,
J. Makalintal Dissenting in Director of Prisons v Ang Cho perhaps, borne out of the public's frustration over the slow
Rice, 33 SCRA (1970) pace of decision-making. With respect, however, no overhaul
• Powers of Congress would be necessary if this Court commits to be more
• judicious with the
exercise of its original jurisdiction by strictly implementing the contract”. (pp. 495, A March of Liberty, A Constitutional
doctrine of hierarchy of courts. Accordingly, for the guidance History of the United States, by Melvin I. Urofsky, Knopf New
of the bench and the bar, we reiterate that when a question York).
before the •
Court involves determination of a factual issue indispensable • Essence of Due Process in
to the resolution of the legal issue, the • Administrative Proceedings
Court will refuse to resolve the question regardless of the • "The essence of procedural due process is
allegation or i)lvocation of compelling embodied in the basic requirement
reasons, such as the transcendental or paramount of notice and a
importance of the case. Such question must first real opportunity to be heard. In
be brought before the proper trial courts or the CA, both of administrative proceedings, as in
which are specially equipped to try and the case at bar,
resolve factual questions. (Gios-Samar, Inc. represented by procedural due process simply means the
its Chairperson Gerardo M. Maliano v. Department of opportunity to explain one's side
Transportation and Communication and Civil Aviation or the
Authority of the Philippines, G.R. No. 217158. March 12, opportunity to seek a reconsideration
2019) of the action or ruling
• We took cognizance of the complained of. 'To be heard'
petition, ruling foremost that the Court does not mean only verbal arguments
has jurisdiction over the in court; one may also be
case by virtue of its "power of heard thru pleadings. Where
judicial review under the Constitution:" opportunity to be heard, either
x x x [W]hen the through oral arguments or
judiciary mediates to allocate constitutional pleadings, is accorded, there
boundaries, it does not assert is no
any superiority denial of procedural due process."
over the other departments; it does • E. Re-examining The law on
not in reality nullify or freedom of speech,
invalidate an act of the of expression and of the press
legislature, • No law shall be passed abridging the freedom of speech, of
but only asserts the solemn and sacred expression, or of the press, or the
obligation assigned to it right of the people peaceably to assemble and petition the
by the Constitution to government for redress of
determine conflicting claims of grievances.
authority under the Constitution and • Freedom of expression has gained recognition as a
to establishfor the fundamental principle of every democratic
parties in an actual controversy the government, and given a preferred right that stands on a
rights which that instrument higher level than substantive
secures and guarantees to economic freedom or other liberties. The cognate rights
them codified by Article III, Section 4 of the
• The Bible Constitution, copied almost verbatim from the First
• On Due Process of Law Amendment of the U.S. Bill of Rights, were
• “The officers of the temple went back to the chief priests, considered the necessary consequence of republican
who asked them, “Why didn’t you institutions and the complement of free
bring him?” The officers answered, “No one ever spoke like speech. This preferred status of free speech has also been
this man”. The Pharisees then said, “So codified at the international level, its
you, too, have been led astray!” Have any of the rulers or recognition now enshrined in international law as a
any of the Pharisees believed in him? customary norm that binds all nations.
Only these cursed people, who have no knowledge of the • E.4. Anatomy of Restrictions: Prior Restraint, Content-
law!” Neutral and Content-Based
• Regulations
• Yet one of them, Nicodemus, who had gone to Jesus • Philippine jurisprudence, even as early as the period under
earlier, spoke out, “Does our law the 1935 Constitution, has
condemn people without first hearing them and knowing the recognized four aspects of freedom of the press. These are
facts?” (John 7:40-53) (1) freedom from prior restraint;
• (2) freedom from punishment subsequent to publication; (3)
• freedom of access to
• Substantive Due Process; Its provenance information; and (4) freedom of circulation.
• Traditionally, “the idea of vested rights, for example, could • The theories about social contract were to replace the
be traced back to the men of the divine
Revolutionary generation, many of whom believed that rights theory that justified the absolutism of monarchies -
natural rights, property rights, and from the signing of the Magna Carta by King John of
vested rights all meant essentially the same thing. Property England,
constituted the foundation of the to the Glorious Revolution in England, to the French
social contract; take away the protection of property, and Revolution, to the American Revolution, to the Philippine
anarchy would reign. The people of Propaganda Movement of Ilustrados who were inspired by
the United States, asserted Justice Samuel Chase in Calder the
v. Bull (1798), created government writings of the Enlightenment philosophers.
to establish justice, promote the general welfare, secure the • England's King John (the tyrant king in the legend of Robin
blessings of liberty, and “protect Hood) was forced to sign the Magna Carta or the Great
their persons and property from violence”. Any legislative act Charter after the revolt of barons who owed money to pay
that failed to further these goals, hefty taxes for the financial support of his failed campaigns
that detracted from one’s rights in property, had no force, for and who felt abused by a king who pronounced himself
it violated the basis of the social above
the law.
• He was also excommunicated for directing church affairs,
including the appointment of bishops. Among the rights
chartered were guarantees against arbitrary punishment
protection of the church from government interferencecurich
developed into the concept of separation of Church
and State), access to justice by trial of jury, and no taxation
without consultation.
• The latter right resurfaced in 1767 when the British
Parliament levied taxes on imports of tea, which was
valuable commodity at that time, resulting in the Boston Tea
Party revolt that escalated into the Declaration of
Independence by the American colonies in 1776 after they
failed to convince the British Crown to repeal the act.
Authored by Thomas Jefferson, the Declaration conceived
the
elements of a legitimate government based on the
affirmation of the natural rights of man:
• "We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Liberty
and the pursuit of Happiness. That to secure these rights,
Governments are instituted among Men, deriving their just
powers from the consent of the governed. That whenever
any
Form of Government becomes destructive of these ends, it is
the Right of the People to alter or to abolish it, and to
institute new Government, laying its foundation on such
principles and organizing its powers in such form, as to them
shall seem most likely to effect their Safety and Happiness.
• The Malolos Constitution and the 1935 Philippine
Constitution
adopted many provisions of the American Bill of Rights and
its
liberal philosophy. Our national hero, Jose Rizal, was an avid
reader of Voltaire's critique of the French monarchy and of
the privileges of the Catholic Church, as exposed in the
person of "Pilosopo Tasyo" in Rizal's novel Noli Me Tangere.
• Many of the principles of Enlightenment philosophers have
been
incorporated as articles in Rizal's proposed Rights of Man,
which
comprehensively included 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 theorists do not explain the origin of society
through the divine rights of kings or through the Biblical
account of salvation history. They believe that the
fundamentals of society were brought about by conventions
and agreements, tacit or explicit, also called as the "social
contract."
• Before the social contract, there were only the natural rights
of man (a take-off from natural law for Locke), or the natural
state of man, which Hobbes depicted to be nasty and
barbaric, while Rousseau impressed to be pristine like a
Garden of Eden. In any case, the modern State, civil society
and rights were born after the social contract. Laws,
including a Constitution, written or unwritten, are
expressions of this contract.
• In chess, the knights, the queen, the bishops, and the
pawns can all male or break a king. The same with
politics, according to Niccolo di Bernardo de Machiavelli,
the classic power pundit. The moves of a politician's
right-hand man, spouse, clergy, and people can spell
checkmate. This is true, even in the game of thrones of
Philippine politics.
• Machiavelli's The Prince was written for rulers in the
making
in a very unstable society. Some, like Rousseau, say that it
was deliberately written on how not to rule, because
following Machiavelli's tips will inevitably lead to dictatorship
and revolution.