LEGAL ISSUES AND THEORIES

L A W

- connotes binding communal rules- do’s and don’ts

- classified into two:

- Jural or human law

 refers to sanctioned or enacted law (statutes, case laws, normative rules,
precepts)
 concern of the lawyers
 to the extent of pointing its possible origin and propriety as a right of duty,

- Non-jural or meta-legal
 not anchored on human promulgation (divine law, natural law, physical law)
 are the concerns of theologians, scientists, physicists
 concern of the lawyers as well (natural law)
Divine law
- Sacred writings such as the Bible or Qur’an, backed up by faith

Natural Law
- Law of our human nature, based on the demands of our humanity

Physical law
- Refers to the mechanical laws of the universe (laws of gravity by Galileo, Newtonian
mechanics, Einstein’s law of relativity)

“Law in its specific and concrete sense is a rule of conduct, just, obligatory, formulated
by legitime power for common observance and benefit” – Lapitan vs Philippine Charity
Sweepstakes office, Sanchez Roman

“Law is an ordinance of reason ordered towards the common good, promulgated by him
who was charge o the community” – Summa Theologica, by Thomas Aquinas

- Reasonable ordinance ( rationis ordinatio)

- For the common good (bonus communis)
- Promulgated (promulgatio)
- Legitimate authority (auctoritas)

If any of this is absent, a “law” is not really a law and need not to be observed.

“A reasonable rule of action expressly or directly promulgated by 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” – Arturo Tolentino

MAX WEBBER

- Identifies law as a legitimate order in Law in Economy and Society

- “An order will be called law if it is externally guaranteed by the probability that coercion
(physical or psychological) to bring about conformity or avenge violation, will be applied
by staff of people holding themselves especially ready for that purpose”
- Basic features of law that distinguish it from customs and conventions:
 The duty to comply
 Due to external actions or threats
 By individuals tasked to enforce the law
 - There is no sense of duty in customary rules of conduct or usage
- Conventions are agreements that parties have a duty to follow in good faith, but without
a corollary punishment when disobeyed. “soft law”

REASON AND COMMON GOOD

- Law is a rule of human acts, commanding man to act or refrain from acting
- 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, useful, clear in expression and adapted to place and time
- Reasonable law makes people moved to follow
- Unreasonable law results to defiance and dissent
- Principles of basic humanity = purely ethical norms = legal claims
- Law as an abstract
- “science of moral rules, founded on the rational nature of man which governs his
free activity for the realization of individual and social ends of a nature both
demandable and reciprocal” - Tolentino
- Not all ethical norms should be law, only those rules concerning man with his fellow man
- Field of morals are more extensive than law
- Law can only govern external moral conduct, not internal or private morality-
Aquinas
- Law should observe and promote public morality that concerns the common good
- Common good is not the utilitarian ethic of THE GREATEST HAPPINESS FOR THE
GREATEST NUMBER
- Rather the good of everyone
- Bears common aspirations of all, not just the majority
- MAJORITARIANISM
 argues the majority opinion is fallible
 still the best way to arrive at the most reasonable terms (more heads are better
than one)
 there is more intelligence, experience and wisdom in number
- lawmaker should frame the law according to how the subject matter commonly occurs in
the majority of instances
- it is not expected that the legislator should assume every single case possible but should
leave room for expectations when the law need not be strictly applied
- should be careful in distinguishing popular morality or popular good from the common
public good
- Law can be a valid public order, reasonable and fair to all although it may be unpopular
to many

PROMULGATION AND AUTHORITY

- Final step in the law-making process is notice to the public

- Public should be able to take notice of the law, whether publication or by hear yeas as a
matter of due process
- It is the citizen’s duty to keep abreast of the law and his ignorance will not excuse him
from non-compliance (in accordance with art. 2 and 3 of the civil code)
- Supposed to address the injustices
- Due promulgation must come from a competent authority not from some private
individual or public official unauthorized to enact a law
- Law must be issued by one who takes charge oof the community who wields the power
to promote the common interest

LAW ON PROPERTY AND ECONOMICS

- The law can make you a millionaire tomorrow. It can also make you a street rat
overnight
 - Economic policies based on laws on property can kill industries, can be a consequence
of commercial laws
- People’s ideology, beliefs and perception on work and money eventually become a law
and frame the economic agenda
- Values people put into property and prosperity
- Religious beliefs also affects
- Property can be private, communal or public and corporate

PRIVATE PROPERTY

- Considered a natural right by libertatrians and classical philisophers

- Humans need to keep goods for personal consumption and improvement
- The drive for profits can lead to new pursuits and innovations
- Without private ownership, less reason to venture into a market and less incentive to be
productive because there is nothing more to gain
- “property should be private so that someone can take responsibility to maintain and
develop” -Aristotle
- “what man puts value through labor becomes his own” -John locke
- “the ability to own can be an expression of self-determination” -Immanuel Kant
- The rights of private ownership can be abused:
 The right to abuse is in fact a composite right of owning something (jus abutendi)
 Right to use his propery and exclude another from its use (jus utendi)
 Hold possession of the property (jus possidendi)
 Enjoy its fruits (jus fruendi)
 Acquire its accessories (jus accesiones)
 Recover it (jus vindicandi)
 Transfer and destroy it (jus disponendi)
- “just price” is the price people are prepared to pay and the buyer will feely accept in
transfer of ownership, given honest information which includes a decent profit however
excludes deception and excessive profiteering which is considered avarice or greed
- “price discrimination” selling the same product at a different price to different classes
of people according to their buying power (lower prices to attract buyers with alternative
higher price to those willing to pay extra)
- LAISSEZ FAIRE, LAISSEZ PASSER (leave the individual alone, let commodities
circulate freely)
- Commercial transactions are legitimately based on self-interest since no one sells or
buys without anything in it from him
- The interest of ones’ business to improve the quality of one’s products at competitive
prices
- Self-interest will yield to quality competitive goods that serve over-all public interest
- “INVISIBLE HAND” in capitalism is self-interest to survive in a free and competitive trade
eventually serves public interest
- Advantage of oneself not that of the society

PUBLIC PROPERTY

- Communal property
- Refers to things that are used and own in common (natural resources, streets, bridges,
parks, river banks, etc) Art. 420 of Civil Code

Art. 420. The following things are property of public dominion:

(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, banks, shores, roadsteads, and others of similar character;

(2) Those which belong to the State, without being for public use, and are intended for some
public service or for the development of the national wealth.

- Communist states, “PERSONAL OWNERSHIP” ownership of goods to satisfy basic

needs which cannot be used to produce income
 - PUBLIC OR SOCIALIST OWNERSHIP means production are owned either by the
State or by a commune, to be disposed according to one’s needs and one’s labor or
contribution to society
- Rights over the land and means of production assigned or entrusted to a community not
to an individual
- Goods are distributed according to the test of need, “NEED” something a human cannot
do without in order to survive, wants/desire are unlimited
- Communism = tragedy of the commons
- A person does not feel personally accountable or motivated to devote himself and invest
his time and effort when a land or property is held common for general use
- Common property can be overexploit or overharvest
- Properties are limited and cannot be free for all because of the growing population even
if controlled
- The government cannot take care of everything and will not always be efficient
- Lack or property and personal space is disempowering as to lack of legal rights
- A government big enough to give one everything would be strong enough to take
everything one has
- Economic control is state controlling the means to all our ends

CORPORATE PROPERTY

- Reserves the property to an entity

- Owners are free to expand and use their property and receive dividends
- No private individual owns the corporate property
- It is an artificial person, the corporation which owns the property
- Corporate holdings are the preferred mediums of ownership
- Corporations can bring together assets and investments of many shareholders to fund
multi-million-dollar projects than a single person can’t
- Proportionately distributes the profits based on one’s stock ownership and insulates
shareholders from suits as the corporation has a separate personality
- Pays the creditors and a stockholder can have a money equivalent of his shares once he
is opts out of the company
- Criticized for creating cartels and monopolies which in return anti-trust laws are passed
to solve corporate greed nd break monopolies, prohibit mergers, reserve government
shares, limit management prerogatives and perks, give incentives to new players
- “Natural monopolies” (oil refineries, railways, telecom networks, and banks)

WELFARE ECONOMY

- “SOCIAL MARKET ECONOMY” middle ground for private, public and corporate
ownership
- Principle of “make markets fair”
- Industries will remain in private or corporate ownership but the government will provide
public works and basic services (social security, health care, pension, education, and
measures to prohibit monopolies and cartels)
- Government regulation is needed to stabilize economy, protect both workesrs and
property owners and allow profitable return of investments lest industries close down
- “Homestead principle or labor theory of property” the exertion of labor upon natural
resources that things become one’s property

LAW, GUILT AND PERSONAL LIABILITY

- Freedom and responsibility are issues in criminal liability

- “VOLUNTARINESS” or “FREE ACTION”, an element of criminal liability
- The presence of malice or good will does not matter as long as the act is deliberate
- “BAD FAITH” is a factor in in aggravatijng penalties the road to hell can be paved with
good intentions
- One’s motivation, one must be responsible foe what one made or made not happen
willingly
- Deliberation and voluntariness is the key
 - Two main causes of how an act becomes involuntary: ignorance and compulsion
 IGNORANCE- lack of knowledge or awareness of one is doing or not doing
 COMPULSION- forced to do something he should not have done
- DETERMINISM- theory that all events are caused by antecedent conditions and people
do not have much free will
- Mental deficiencies, heredity, hormonal imbalances, psychological lapses, biological
instincts, physical needs, traumas and syndromes, social conditioning and pass-on
political and religious beliefs can all “CONSPIRE” to make a person commit the perfect
crime
- One is responsible if one has been the proximate cause without which the damaging
event, in the ordinary course of things and with due care would not arise
- Strict liability prevents defenses and justifications based on still debatable thories of
human free will
- People can be driven to commit criminal acts given their environment and circumstances
- People are responsible but not solely responsible, and mitigating aggravating, and
special circumstances must always be appreciated

LEGAL THEORIES

TELEOGICAL OR NATURAL LAW

- Looks into principles, purpose and end (telos) of the law

- Goes to question of the why of the law
- Believes that the law serves a higher universal order based on “natural order” which is
discovered through our common human reason and validated by human experience
- Example of “normative jurisprudence” which evaluates the purposes or norms behind the
law
- Laws are rules of man to realize his basic natural goods and when shared, become
society’s common good
- Nature is how people normally behave and re expected to behave
- Human nature is rational
- The law is law as long as it pursues the precepts of reason:
 Reasonableness
 Justice
 Equality
 Fairness
- Common law is based on precedents and recognizes that there are basic legal principles
or doctrines of reasons that the courts must follow
- “law of nature” = “reason” (standard of reasonableness)
- Philippine Civil Code acknowledges the existence of natural rights

POSITIVIST THEORY

- Are positive on what the law “posits” by the authority given to the state or by socially
accepted rules
- “Command theory”
- Highlights obedience to the content and expression of the law with the adage “dura lex
sed lex” (the law maybe harsh but that is the law) and “quod principi placuit legis habet
vigorem” (whatever pleases the prince has the force of law)
- Referred to as “conventionalism” that law is purely a product of human will not of some
natural law or divine will
- Are made out of explicit or implicit agreements, treaties or conventions in society not due
to some extra-legal reality (natural rights, divine providence etc)
- There is no underlying substance, principle or content that the law must conform rather it
need only be procedurally correct to be valid
- Analytic jurisprudence that studies and recognizes law simply for “what it is” (lex lata)
- No ifs or buts or referents to judge the law other than the law itself
- Social fact thesis, cannot demonstrate on what the law should be but on the facts of
what the law is
- Argues in legal not moral issues
- Expositors explains the law for what it really is
- Censors criticize the law in the relation to non-legal notions
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