Philosophy Notes
hold justice to be at least one measure of
Judgment at Nuremberg
Obligation
Roman Law is heavily by the natural law
Natural Law- individual are natural beings. Idea of
reason.
Simulation Activity- Oct. 02, 2023 (Watch Judgment
at Nuremberg) (Post-Nazis)
Midterm Exam- everything that has been tackled.
READINGS REFLECTION
Jose Diokno Letter to Popoy
- Sen. Jose W. Diokno’s Letter to his eldest
son, Jose Ramon written on 23 October
1972 while in detention.
- A lawyer lives in and by law; and there is no
law when society is rules, not by reason, by
will—worse, by the will of one man.
- A lawyer strives for justice; there is no justice
when men and women are imprisoned not
only without guilt, but without trial.
- A lawyer strives for freedom; and there is no
freedom when conformity is extracted by
fear, and criticism silenced by force.
- A lawyer builds on facts. There is no truth
when facts are suppresses, news is
manipulated and charges are fabricated.
- Our country is in need of great lawyers, not a
brilliant one; a scoundrel can be, often times,
become a brilliant lawyer but only a good
man can become a great lawyer.
- “So, there are two sides tp the question of
whether is worth your while to study law; and
in the end, it is a question that only you can
answer.”
- “The law is demanding profession, exacting
constant and unswerving devotion that is
always a thinking obedience to its ideals,
and that is much harder to give than blind
obedience;
Diokno Filipino Concept of Justice
- Some have argued that justice is what the
strong impose and the weak accept.
- On the contrary justice is what pts limits on
what the strong can impose
- The relationship of law to justice is not even
ambiguous; it is essentially negative.
- In so wording, you make it clear that you
law; that your concern is not with justice in
general, but with social justice; that you
expect, not a detailed program of action…
- But first we mist quiet a niggling doubt. We
have been dominated by the West for so
long; our political institutions, our laws, our
educational system; all are copies of
Western Patterns; In these instances, can
we hope find a concept of justice native to us
Filipinos?
- Tagalos, Ilongos, Cebuanos, and Pamangos
use a common word for justice, katarungan
derived from the Visayan root “tarong” which
means straight. Upright, appropriate, correct.
- For us, Justice is rectitude, the morally right
act; and because I also connotes what is
appropriate, it embraces the concept of
equity.
- For us, Justice and Right are Intimately
related.
- Our language recognized that law is not
always just.
- Our language employs the same word
katarungan, for both justice and fairness
- So it seems logical to conclude that the
fundamental element in the Filipino concept
of justice is fairness, and the privilege and
naked power—two of the worst enemies of
fairness—are alien to the Filipino mind.
- So we Filipinos know that not every
justification is just.
- Our language establishes that there is a
Filipino concept of justice; that it is a highly
moral concept, intimately related to the
concept of rights; that it is similar to, but
broader that western concepts of justice, for
it embraces the concept of equity.
- To discern the Filipino vision of the universe
that puts flesh on the bones of the concept of
justice our language expresses, we need to
turn to the history of our people. That history
may be described as a continuous and
continuing struggle to create a just society.
- As society which is independent and people
are sovereign;
- As society which respects the freedom and
the equal dignity of all.
- As society which protects workers and
tenants, opposes oppression, exploitation
and abuse, and seeks to eliminate poverty;
 - A society which is united in brotherhood and
self-reliant.
- What due process means; doing the right
things in the right way.
- Social Justice, for us Filipinos, means a
coherent, intelligible system of law, made
known to us, enacted by a legitimate
government freely chosen by us and
enforced fairly and equitably by a
courageous, honest, impartial, and
competent police force legal profession and
judiciary, that
- first, respects our rights and our freedoms
both as individuals, and as a people;
- second, seeks to repair the injustices that
society has inflicted on the poor by
eliminating or at least reducing poverty as
rapidly as our resources and our ingenuity
make possible;
- third, develops a self-directed and self-
sustaining economy that distributed its
benefits to meet at first, the basic material
needs of all, then to provide an improving
standard of living for all, but particularly for
the lower income groups, with time enough
and space to allow them to help create and
to enjoy our culture;
- fourth, changes our institutions and
structures, our ways of doing things and
relating to each other so that whatever
inequalities remain are not caused by those
institutions or structures, unless inequality is
needed temporarily to favor the least favored
among us and its cost is borne by the most
favored;
- fifth adopts means and processes that are
capable of attaining these objectives.
Truth and Client’s Interest
- The relationship between law and justice, or
between legality and morality, is of much
interest
- within philosophy in general, and philosophy
of law in particular. This article discusses the
two
- with respect to the duties of defense
attorneys.
- The extreme implication would be that there
is no connection between law and justice.
But that there is some connection is common
sense. Indeed, the aim of the practice of law
is to guide procedures that protect justice.
Lawyers take an oath of office to protect the
course of justice at all times, without fear,
favor or bias.
- Therefore, to argue that law and morality
- have nothing in common seems to be going
too far. However, to also insist that law is
wholly moral or just is also not accurate. For
example, a poor person who steals a packet
of biscuits from a supermarket may be
condemned to six months in prison, while a
bank manager who has embezzled millions
may get a one-year suspended sentence.
Although this is done legally, is it fair or just?
- The implication of this rhetorical question is
that it might be legal even though morally
- repugnant.
- The principle of truth is therefore cardinal in
the administration of the law.
- Notwithstanding this, defense attorneys must
often be concerned with something other
than the truth. They also operate on the
basis of another principle – the principle of
their client’s interest.
- As an official of the court, he is sworn to
advance the truth; but as a defense attorney,
he is also sworn to give priority to the
interests of his client.
- Yet this is not always the case, as seen in
instances where the client’s interest may
require saying less than the whole truth, for
example.
- His role is to present his client’s case as well
as he possibly can; but the ideal goal of the
- legal process is to arrive at the truth, not to
serve the selfish interests of the
protagonists. The defense attorney should
morally therefore never sell out truth to serve
his client’s interest.
- One might be persuaded that for the sake of
justice, the principle of truth must be primary.
- However, examination of the canons
indicates that those concerned with the
lawyer-client relationship have more weight:
more emphasis seems placed on the
protection of the client’s interest. This seems
counterintuitive, so a careful consideration is
necessary.
- Canon 4 ensures that clients are able to
confide in attorneys, and that the attorneys
are able to obtain confidences from clients. It
enables the defense attorney to be fully
informed, and also encourages the layman to
 seek legal representation and advice. But
however desirable these objectives may be,
canon 4 also marks the point where the
principle of truth and that of client’s interest
can diverge, as it allows for dishonesty on
the part of lawyers: it gives them a canonical
- protection from not telling some truths, if
such truths would be detrimental to their
client.
- This therefore makes it quite difficult to
criticize an attorney for not telling the whole
truth sometimes.
- Here, the principle of client confidentiality
seems to override the principle of truth.
- It therefore appears that a defense attorney
has no apparent obligation to the court to
present all the facts of the case. It seems
perfectly possible for a defense attorney to
sacrifice the principle of truth for the sake of
the client’s interest without necessarily
contravening legal ethics.
- This highlights the ambivalence of the
relationship between legal and moral issues,
or better, the relationship between law and
justice.
Juan Bautista (Reading in Philippine Legal
History)
- Man views his past with boundless
fascination, savoring its drama and victories,
weeping as its failures and follies, probing it
for clues to the meaning of human endeavor.
- It encompasses the recurrence of heroism
and bigotry, the apathy and misery of vast
peasantries, and the growth, and vicissitudes
of the ideas of justice and brotherhood.
- Elton states that the achievements and
charisma of the datu enabled him to
command the personal loyalty of an extend
kinship group and continually increase the
number of his followers, including slaves.
- The maxim of the philosophers Ex nihilo
nihilfit – something does not come from
nothings—may be taken as the keynote to
all legal history.
- Finds law as a product of evolution.
- “Today we study the day before yesterday, in
order that yesterday, in order that yesterday
may not paralyze to-day, and that to-day may
not paralyze tomorrow.”
- The history of modern law is but an offshoot
of the history of ancient law. The line of
demarcation is not easily discernible and
may be invisible.
- Lega; History develops its own methods and
concepts by which other scholars and
historians collect evidence of past events,
evaluate them and present them to the
world.
- History and Legal History in particular is a
manifestation of memory – a laying out, a
disclosing of the past; a way of ordering,
recording, and retaining that past; and so it
serves to underpin our identities at both a
personal and public level. It is difficult to see
how we could retain any sense of significant
identity without our memories.
- The memories of the past are crucial and
vital to the understanding of what we
presently are and what are the laws that
govern us.
Philippine Sociological Society
LEGAL HISTORY
History
- An account of the unchanging past –
Aristotle
- “man in time” – March Bloch
- “unending dialogue between the present and
past.”; “a problem-solving discipline’- EH
Carr
- It is an umbrella term comprising past events
as well as the memory, discovery, collection
organization, presentation, and interpretation
of these events.
- Historians seek knowledge of the past using
historical sources such as written
documents, oral accounts, material artifacts,
and ecological markers – Arnold
- “Ang kasaysayan ay mga salaysay na may
saysay sa sinsalaysaynag slinlahi” – Zeus
Salazar
- History is both a humanities and social
science; the historian uses the scientific
method in investigating his material, he uses
the methods known to the humanist in
breathing life into the past” – Agoncillo
- Pasyon and Rebolusyon
- Merging the past and present
Legal History
 - A manifestation of memory – a laying out, a
disclosing of, of ordering, recording, and
retaining that past; and so it… our identities
at both a personal and public level”
- Development of law in general
- Understanding how the law progress
- Is the general field of inquiry on the
development of law, legal principles and
legal
Historical Jurisprudence
- Legal history is the general field of inquiry on
the development of law legal principles and
legal institutions
- Historical jurisprudence is a perspective in
jurisprudence which argues that laws are
developed from cultural and historical
experiences rather that it being actively
conceptualized by law makers.”
- Laws are discovered; not created.
Why is it important to Study Legal History
- Something does not come from nothing; law
is a product of evolution
- Subsequent nations are debtors to earlier
people
The Civil Law System
- Branch of the law that generally treats of the
people, relations of an individual, his
property and successional rights, and the
effects of his obligations and contracts.
(Edgardo Paras)
- It is that mass of precepts that determine
and regulate the relations of assistance,
authority, and obedience among members of
a family, and those which exist among
members of a society for the protection of
private interest.
The Ancient Romans
Twelve Tables (450-451)
- A list of laws covering mostly private laws
- Codified laws to balance the interests of
Patricians, Plebeians, and Pontifices..
IUIRS CONSULTI
- Persons consulted about the law
- Juriconsults/ jurists that announce the
principles of justice in applying the law.
- Their pronouncements are binding
Jurists under emperor Augustus
- In the early days of Roman history
knowledge of legal procedure and the law in
general was restricted to the pontifical
college, whose members’ origin was
exclusively patrician.
- Jurists served to advise and counsel,
become a public office to provide responsa,
sententia, regulae
Patrician-Plebeian Hierarchies
- Patricians mastered the laws, and served
dependent plebeians called “client”
2 Aspects of Roman Natural Law
1. Jus gentium (law of nations)- law regulating
the state-citizen relation, empire to empire
2. Jus Civile (law peculiar to one state) -
regulates particular one geographic
Corpus Iuiris Civilis (Justinian Code)(The Body
of Civil Law)
- A collection of existing Roman Laws made
by a group of scholars led by the legal
minister Tribonian.
4 Books of the Justinian Code
1. Codex Constitutionum (Code of Ordinance
and decrees)
2. Digest or Pandects (summarizes common
law to guide judges)
3. Institutes (introduction to law for law
students)
4. Novellae Constitutiones Post Codicem or the
Novels (supplementary new laws passed by
Justinian)
Justinian Code to Napoleonic Code
- The Justinian Code has heavily influenced
legal systems of Europe, including the
French Civil Code, which is deeply rooted
from the Napoleonic Code
Spanish Civil Code
- Because of the expansive power of
Napoleon Bonaparte, the Napoleonic Code
has also influenced the Spanish Civil Code.
- The Spanish Civil code was enforced in the
Philippines on December 1889, except the
Law on Marriage and Civil Registry.
Roman Law vs. Philippine Law
Report of the Code Commission
- The Philippines, by its contact with the
Abuse of Rights Principles
Western countries over the last centuries, is
a rightful beneficiary of the Roman Law,
which is a common heritage of civilization.
- For many generations that legal system, as
developed in Spain, has been the chief
regulator of the judicial relations among
Filipinos.
- It is but natural and fitting, therefore, that
when the young republic of the Philippines
frames its new Civil Code, the main
HISTORICAL
inspiration should be the Roman law as
HISTORY
unfolded and adapted in Spain, etc.
COMPARISONS
Roman Law
- De Jure Personarum
- De Rerum Divisione
- De Jure Actionibus
Civil Code
- Persons
- Property
- Succession
- Obligations and Contracts
- Special Contracts
Best Features of Roman Law
- Equity
- Universal Adaptability
Equity
- Under common law systems, two systems of
jurisprudence developed; the system of law
and the system of equity which eventuallu
coalesced.
- In Roman Law, there is no distinction
because in theory, law should also be about
equity. (What is fair and right)
- The elements of fairness, good faith, and
morality are much more discernible.
- Law of Justice or of right (Roman) vs. Law of
Force (English)
Universal Adaptability
- In other jurisdictions, the customary of most
people are restricted to themselves, and
hence, local.
- Jus Gentium became the law for the entire
Roman Empire and was developed for the
needs of the world.
- Iuris praecepta sunt haec: honeste vivere,
alterum non laedere, suum cuique tribuere. (
one of the best evidence in proclaiming that
our laws are influenced by the Roman Laws)
- Article 19. Everyone 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.
EPISODES OF PHILIPPINE
1. PRE-COLONIAL
- Highly based on Patriarchy (Panagalangan)
- Laws were confined to the unit of
government called “Barangay”, which were
independent political systems.
- The Datu in the barangay exercised all
political systems.
- Elders assisted and advised the Datu on
certain matters, including the promulgation of
laws, trial of cases, declaration of war, and
negotiation of treaties with other barangays.
- Concept of nation has not yet existed at this
time
- Laws are either written or unwritten
- Oral Tradition became a very important
medium in the promulgation laws.
- Cases or disputes were tried by the Datu,
acting as judge with the help of the barangay
elders sitting as jury.
- Disputes between datus, or between resident
of different barangasy, were sometimes
settled by arbitration with some datus or
elders from other barangays acting as
arbriters or mediators. In this way, was
always averted.
- Got the inspiration for barangay katarungan
wherein some cases before filed in a court,
the brgy katurang try to intervene to end it
amicably. (Certificate to file action)
- The Code of Kalantiaw and Code of
Maragtas: Allegedly a preserved pre-
colonial codified law. Subsequently
debunked by William Scott; National
Historical Institute issued a 2004 resolution,
calling it a hoax.
2. COLONIAL
Spanish Period
- Reduccion- Reducción aimed to consolidate
colonial control over Philippine indigenous
communities by compelling prominent individuals
to relocate into poblaciones within hearing distance
of church-bells. Bell ringing ordered daily life by
signaling times to congregate and by marking
special occasions. Policy of Political
Centralizations.
- The Spans introduced private and public law.
- The Spanish colonial rule introduced the ff codes:
Spanish Civil Code (1889-1940); Civil Code was
born August 30, 1950
- Spanish Penal Code (1896-1930); RPC was born
January 01, 1932.; Code of Commerce
- Spanish Real Audencia: During the early Spanish
occupation, King Philip Il established the Real
Audiencia de Manila which was given not only
judicial but legislative, executive, advisory, and
administrative functions as well. Composed of the
incumbent governor general as the presidente
(presiding officer), four oidores (equivalent to
associate justices), an asesor (legal adviser), an
alguacil mayor (chief constable), among other
officials, the Real Audiencia de Manila was both a
trial and appellate court. It had exclusive original,
concurrent original, and exclusive appellate
jurisdictions. At latter part, it became a judicial
branch.
Malolos Constitution
- Wasn’t recognized because American’s
colonialism
American Period
- Political laws were abrogated (repealed)
- Spanish laws that were inconsistent with the
US constitution and common law principles
were superseded.
- Organic Laws under the American Regime:
Mckinley’s Instructions, Spooner
Amendment, Philippine Bill of 1902 (quasi-
constitution), Jones Law of 1916, Tydings-
Mcduffie Law of 1934
- Act. No. 135 “An Act Proving for the
Organization of Courts in the Philippine
Islands”
- The Philippine Commission abolished the
Real Audencia and established the Supreme
Court on 11 June 1901, with Cayetano
Arellano as the first chief justice, with a
majority of American associate justices.
- Created the Justice of the Peace and the
Court of First Instance
- Introduced the Anglo-American legal system
- US Supreme Court had appellate jurisdiction
to review decisions of the PH SC until July 4,
1946.
- Appellate Jurisdiction.
- 1935 Consti was highly patterned after the
American Constitution.
- The Tydings-Mcduffie law authorized the
Filipinos to formulate their own Consti (1935)
Japanese Occupation
- Didn’t contribute to our legal system
3. POST-COLONIAL
- Marcos and Martial Law: 1973 Constitution
- Ratified through Citizen’s Assemblies
- And no reason have been given, or event
sought to be given thereof. In many, if not
most, instances, the election were held a
viva voce, thus depriving the electorate of
the right to vote secretly – one of the most,
fundamental and critical features of our
election laws from time immemorial –
particularly at a time when the same was of
utmost importance, owing to the existence of
Martial Law. (Javellana v. Executive
Secretary 1973)
- Post-Martial Law: 1987 Constitutions
- Interregnum: a period when normal
government is suspended, especially
between successive reigns or regimes.
- Even in the absence of a constitution; rights
will never cease
- International Law Commitments to
Human Rights: UDHR, UN International
Convention on Civil and Political Rights, UN
Internationsl Convention on Social,
Economic, and Cultural Rights; Two ICCPR
Protocols
DIALECT OF LEGAL PHILOSOPHY
Legal Truth
Moral Truth
Moral Certainty vs. Absolute
- Proof beyond reasonable doubt does not of
course, mean such degree of proof as,
 excluding possibility of error, produces
absolute certainty.
- Moral Certainty only is required, or that
degree of proof which produces conviction in
an unprejudiced mind. The conscience must
be satisfied that the accused is responsible
for the offense charged.
Lady Justice is Blind
- Law should be unbiased
Where the Truth Matters
Jurisprudence
- Perjury: The elements of perjury under
Article 183 of the RPC (a) that the accused
made a stateinem unuer oath or executed an
affidavit upon a material matter; (b) that the
statement or affidavit was made before a
competent officer, authorized to receive and
administer oath; (c) that in the statement or
affidavit, the accused made a willful and
deliberate assertion of a falsehood; and (d)
Different Schools of Jurisprudence
that the sworn statement or affidavit
containing the falsity is required by law or
made for a legal purpose.
- Serious Dishonesty: ground for termination
of employment: is defined as the “disposition
to lie, cheat deceive, or defraud;
untrustworthiness, lack of integrity; lack of
fairness and straightforwardness; disposition
to defraud, deceive, or betray” It is a
malevolent act that puts serious doubt on
one’s ability to perform duties with integrity
and uprightness demanded of a public office
or employee.
- CPRA:
Obligations of Lawyers Toward Law and Justice
- The importance of lawyers depends social
and spatial contexts
- Filipino: Obligation Towards Katarungan
Law
- Can change society
- A lawyers lives in and by law: and there is no
law when society is ruled, not by reason, but
by will—by the will of one man.
Affirmative Action Policies
- Policies that allows that on basis of your
disadvantages, you are allowed to more
privileges.
The Filipino Concept of Justice
- Highly moral concept, intimately related to
the concept of right
- Similar to, but broader that western concept
of justice, since it includes equity
- Discrimination between justice and rights vs.
law and argument
- Fundamental element of fairness
- Eschews privilege and naked power.
- The general philosophy of law; the nature
and the elements of the law.
- The derivation, development, and thrust of
the law.
- It is concerned with the theoretical and
technical aspects of law as a discipline.
- Assessment of the law
 Historical School- studying the law in the
context of a common consciousness. It
concerns the development and origins of law
and its evolutions; where did the law come
from and how did it evolve
 Teleological School- studying the law in the
context of moral and rational nature of
humankind; what is the telos of the law
 Positivist School- studying the law as a
conscious norm of the state backed by its
authority and force; what is the distinctive
structure and content of the law.
 Functional School- studying the law in the
context of social interest and policies: How
does the law work in weighing or adjusting
the competing individual and public interests.
 Realist School- studying the law in the
context of on-going experiences of the
people. Is the law verifiable in the practical
life of the people
 Policy Science- studying the law in relation
to the degree of success of society in the
creation, clarification, and realizations of
social values.
The Concept of Law
 Law in its specific and concrete sense is a rule
of conduct, just and obligatory, formulated by
legitimate power for common observance and
 benefit (Lapitan v. POSO no. 28228, October
15, 1963) (Sanchez Roman; Arturo Tolentino)
 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
civil disobedience. (Edgardo Paras)
 The definition of law may be gathered and it is
nothing else than an ordinance of reason for
the common good, made by him who has care
of the community, and promulgate (Thomist
Definition; Aquinas, Summa Theologica)
A. Ordinance of Reason
B. For the Common Good
C. Promulgated
D. Legitimate Authority
 An order will be called law if it is externally
guaranteed by the probability that coercion
(Physical or psychological) to bring about
conformity or average violation, and will be
applied by a staff of people holding
themselves especially ready for that
purpose. [Max Weber, Law in Economy and
Society]
A. The duty to comply
B. Due to external actions or threat
C. By individuals tasked to enforce
the law.
The Recurring Element
1. Coercion by a legitimate authority
2. You would rather not follow but it is required
3. Fear of material consequences.
Law (in general)
- Any rule of action or order of sequence from
which any beings whatsoever either will not,
or cannot, or ought not to deviate.
Law as a rule of action
- Any warrant, instruction, measure,
regulations, or decision governing any act,
conduct, transaction, or proceeding,
including its consequences.
- Law has to prescribe a specific or certain
conduct which produces legal effects and
consequences.
- The violation of a law does not render the
law ineffective or broken.
Law as an order of sequence
- Any system of arrangement or
consecutiveness, or any uniformity of a given
group or phenomena.
- Law is a system, which demands uniformity
of a given group of phenomena
- The deviation from this system results in
inconvenience, damage, or injury.
Focal point of deviation
- Will-not
- Cannot
- Ought-not
Will-not point of non-deviation
- There is a determination to abide with, or
avoid violation, the rules of action (page 10)
Cannot point of non-deviation
- There is no other way but to obey but to
comply with the rules of action and orders of
sequence, no matter how much the desire to
act otherwise may be.
- Present or actual condition or conformity
-
- This cannot point of non-deviation gives the
power and force to punish non-conformity.
Ought-not Point of Non-deviation
- While there are possible alternatives, these
alternatives are abandoned because
prudence dictates that the law must be
followed.
Jural (Page 11)
- Law studied by law students
- Particular sense: law is used in the
particular sense when it is preceded by the
indefinite article; ex. A law, statute; incentives
and sanctions.
- Collective Sense; employed as a collective
or aggregate term when it refers to the gross
or bulk of specific of particular laws relating
to one subject-matter. Ex. Civil Law,
Commercial Law, Remedial Law
- Abstract Sense: law is used in the abstract
or theoretical sense when it is simply
referred to as law without the definite article
or when it is preceded by the definite article.
Ex. The law.
The Groups of Laws in the Philippines
 1. Law defining rights and obligations
(Substantive Law)
2. Law defining remedies and procedure
(Procedural/Remedial Law)
3. Laws defining rights and obligations in
extraordinary times (Special Laws)
4. Non-jural laws
Law as Prediction
The Path of the Law by Oliver Wendell Holmes
1. Relation of Morality and Law
2. Perspective of a Bad Man
Law as Profession
- Lawyers as luxuries
- People pay for services of lawyers
- People expect lawyers to understand risk
Law
- Command of the public force is entrusted to
the judges in certain cases, and the whole
power of the state will be put forth, if
necessary, to carry out their judgments and
decrees
- Law is the incidence of the public force
through the instrumentality of the courts.
(Judiciary is the most powerful among other
branches)
Prediction Theory of Law
Source of Law + Facts  Outcome
Lawyer’s Responsibility
Facts  Statues, Jurisprudenece  What the court
will do
Legal Realism
- Taking law into its pragmatic senses
- How does the law affect people’s lives.
- Does not take into account why the law
exists, or the reasons for such law, but takes
into account how to avoid being
inconvenienced by the law
Legal Duty
- “nothing but a prediction that if a man does
of omits certain things he will be made to
suffer in this or that way by judgment of the
court.”
BAD MAN vs. GOOD MAN
Bad Man
- Will help because I will be prosecuted
- Both the good man and bad man would want
to avoid an encounter with the law, but with
different justifications.
- The bad man is simply interested with
material consequences with law,
Understanding and Studying the Law
- Law must be studied for its practical reasons
- From the point of view of the Bad Man, who
cares only for the material consequences
which such knowledge enables him to
predict, not as a good one, who finds
reasons for conduct, whether inside the law
or outside of it, in the vaguer sanctions of
conscience.
- Leave morals aside
Legal Duty to a Bad Man
- Failure to abide means disagreeable
consequences
- Tax vs. Penalty
- Penalty- compelled to Paid because of a
wrong conduct
- Tax- under compulsion to pay
- These do not make sense to a bad man, as
long as he is faced with a situation where her
is being compelled to pay
Legal v. Moral
- Law on Contracts
- Pacta Sunt Servanda
- Principle of Autonomy of Contracts
- A contract, once perfected, has the force of
law between the parties with which they are
bound to comply in good faith and from
which neither oe
- No Malice
- Good Intent
- Lack of Negligence
- State of mind based from moral
considerations
- But what is malicious, intentional, negligentm
in law ehich produces the consequences
Contracts to a Bad Man
- What incentivizes a bad man to perform his
contractual obligations?
 - Good faith to a bad man is the kind of good
faith to prevent any court action that would
hold him liable to pay.
Law= Logic
- The law is reason free from passion-
Aristotle, a known logician
- Judicial decisions are based on logical
analyses
- Cause and Effects patterns
- But are all judicial decisions logical?
- If judicial decision is logical, does it mean it is
right?
- So, does that mean that dissenting opinions
are not logical?
Law = Logic is an Illusion
- You can give a conclusion a logical form, but
it does not mean that it is correct
- Laws are always open to reconsideration
upon slight change in the habit of the public
mind.
- Law on Torts- appreciation of cases depend
on premiums placed on certain values,
hierarchies, etc.
- Judges themselves have failed adequately to
recognize their duty of weighing
considerations of social advantage
- Social factors affect patterns of decisions
- The life of the law has not been logic, but
experience.
Legal Realism vs. Legal Formalism
- Legal Realism  Judges should take into
considerations social factors.
- Legal Formalism  apply the law as it is.
The Ideal Way of Studying the Law
HISTORY AND LAW
- The study of history necessarily plays in the
intelligent study of as it is today.
Jurisprudence and Law
- Jurisprudence as law in its most generalized
part
- Every effort to reduce a case to a rule is an
effort of jurisprudence
Theory and Law
- Theory as the most important part of the
dogma of the law.